Dead litigants expose court bias & Parliament timidity
When George Hislop's appeal was heard May 17, 2006 by the Supreme Court-months after his death-it was a vivid reminder 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 tried to restore children's right to be born and live the life God had given them.
One sought to spend taxpayers' money in ways they never intended; the other sought natural justice.
Mr. Borowski, mercifully, died before having to see the 1988 court strike down the last shred of protection afforded to pre-born children in Canada, and then callously ignore the 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 eventually 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 have actually been written by graduate students who serve as clerks to the justices.
Some of our judges have gained 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 Canada's activist judges. While we may write our opinions of the benchers' bias this side of the veil, the ultimate judgement will be in other Hands.
An ancient Israelite prophet 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 judges have forgotten, or deliberately ignore, the transcendent Source of all "natural justice".
Love mercy? There is no mercy in decisions that end the lives of 110,000 pre-born children every year, or in evil messages that can corrupt the minds of adolescents: the lie that there will be no consequences from immoral or 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".
The solution to this persistent failure to do what's right is readily available to Parliament: our MPs can and should make the courts accountable to Canada's Constitution, as they were from Confederation to 1947-and as they were in 1927-29, when (after the Supreme Court had ruled that women are not "persons") the Privy Council at Westminster 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 should belong exclusively to elected legislatures. In effect, a state of virtual civil war exists among the three branches of government, when the principle of the separation of powers is breached.
But no government yet elected 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 refusing to defend causes such as the right to life and the traditional definition of marriage. Whenever such a principle has been challenged, the government presents only a weak defence—or no defence at all -and the high court then has little choice but to find for the radical appellants. Repeatedly, the government has caved in-and Parliament has allowed the Cabinet to capitulate, because there are not enough MPs with the backbone of a Larry Spencer or a Maurice Vellacott, willing to risk their political career by telling the truth.
That's why it's time we began electing MPs who care more about the principles of justice, and protecting democracy and the Constitution, than they do about re-election.
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Other Commentary by Ron Gray:
- Pourquoi le PHC ? – 2e partie
- Why CHP? — Part 2
- Pourquoi le PHC?
- Why CHP?
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