When George Hislop’s appeal was heard May 17 by the Supreme Court—months after his death—I was reminded of another litigant who died before his case could go before the high court: the late Joe Borowski.
Mr. Hislop’s appeal sought pension benefits for survivors of same-sex relationships; Joe Borowski to restore the right of children to be born. One sought taxpayers’ money, the other sought natural justice.
Mr. Borowski, mercifully, died before the 1988 court struck down the last shred of protection for pre-born children in Canada, and then callously ignored by deeper meaning of his case by declaring his appeal “moot”. He’d spent half a million dollars of his own money, seeking justice that was denied because his cause was not Politically Correct.
Mr. Hislop’s case has not yet been decided, but it’s almost a lead-pipe cinch. He’s spent nearly a million dollars—mostly of taxpayers’ money – in a cause that is warmly supported by the radical social bias of the legal education Establishment; and, as Mme. Justice Bertha Wilson once revealed, some of the high court’s decisions are actually written by graduate students who serve as clerks to the judges.
Some of our judges have a reputation as “conservatives” within the legal education Establishment, because on many minor cases they adhere to precedent and established legal tradition. But on society-shaking social engineering cases, those same judges can usually be counted on to lean heavily to the radical side.
And they remain accountable to no one in this world for the damage done by their decisions.
Joe Borowski and George Hislop have both gone before the ultimate Judge. One day, so will all our activist judges. While we may write our opinions of the benchers’ bias this side of the veil, the ultimate judgement—on the other side—will be in other Hands.
The prophet Micah wrote that all people know, in their hearts, what God wants from us: to do what is just, to be merciful, and to live humbly in the awareness of His presence, His omniscience, and His ultimate justice.
Our courts fail that test, on all three counts, far too often.
Do Justice? As the treatment of the landmark Borowski and Hislop cases reveals, the deeper principles of natural justice—which our Chief Justice correctly said in New Zealand is the source of standards higher than the Constitution or written laws—are made to bow to the idols of political correctness and trendy opinions. The problem is that the judges have forgotten, or deliberately ignore, the transcendent Source of “natural justice”.
Love mercy? There is no mercy in decisions that doom the lives of 110,000 pre-born children every year, or that sustain an evil message corrupting the minds of adolescents: the lie that there will be no consequences from immoral, unnatural behaviour.
Walk humbly? There is neither humility nor constitutionality in rulings that persistently ignore the Preamble to the Charter of Rights, which grounds all our civil rights in the “supremacy of God”.
But the solution to this persistent failure to do what’s right is readily available to Parliament: make the courts accountable to the Constitution, as they were from Confederation to 1947—as they were in 1927-29, when the Supreme Court had ruled that women are not “persons”—and the Privy Council defended natural justice by reversing that bizarre decision.
Ever since 1982, with the permission of the Trudeau Charter, our courts have moved increasingly to usurp the law-making authority that constitutionally belongs exclusively to legislatures. If effect, a state of civil war exists among the three branches of government: the principle of the separation of powers is under attack.
But no government has had the gumption to defend that important principle, upon which democracy itself hangs.
In defence of the Supreme Court, it must be said that previous governments, both Liberal and Progressive-Conservative, repeatedly failed the public interest by failing to defend causes such as the right to life and the traditional definition of marriage. When a law has been challenged, and the government presents only a weak defence—or no defence at all—the high court has little choice but to find for the radical appellants. Far, far too often, the government has caved in, and Parliament has allowed them to capitulate because there are not enough MPs with the backbone of a Larry Spencer or a Maurice Vellacott, willing to risk a career by telling the truth.
It’s time we began electing MPs who care more about the principles of justice and about protecting democracy and the Constitution, than they do about re-election.