Rosie Abella, Paul Martin and Orestes Brownson

• Rosalie Abella and the Liberal’s Failure to Govern
  
  
  One of the first surprising facts I learned about Rosalie Abella is how little time she spent actually practicing law. She was called to the bar of Ontario in 1972 and was appointed to the Ontario Human Rights Commission in 1975. In 1976 she was appointed to the Family Court of Ontario from which she took numerous leaves first to sit on the Ontario Labour Relations Tribunal, and later as the one woman Royal Commission on Equity in Employment. It was here she first displayed her creativity with the invention of the term “employment equity” another in a long list of euphemistic terms which belie their true meaning, in this case “reverse discrimination”. Her commission led to the ill-fated Ontario employment equity legislation, which was subsequently disbanded when its perverse consequences became all too obvious. Undaunted the federal Liberals passed the Federal Employment Equity Act, which while largely discredited remains in force.
  
  In 1989 she became Chairman of the Ontario Law Reform Commission and in 1992 achieved her penultimate goal by being appointed to the Ontario Court of Appeal.
  
  She now stands on the step of her final pedestal with her impending appointment to the Supreme Court of Canada.
  
  Prime Minister Paul Martin’s version of a more transparent process surrounding the appointment of Supreme Court justices devolved into the farce of Justice Minister Irwin Cotler appearing before a parliamentary committee to lecture its members on the perils of “politicizing” the process of judicial appointments. Accordingly, it seems we are left to our own devices to try and determine what might be some reasonably predictable consequences for Canadians from up to 17 years of Rosalie Abella seated on our highest court.
  
  One of the best ways to gain an understanding of a person is of course to meet with them and engage in conversation. The next best is to read what the person has had to say, in order to try and gain an understanding of what are some of the core beliefs and values that nourish the person’s intellectual and moral center. I have not had the opportunity to experience the former, though I think I met her on the steps of a house in Kitsilano we shared with one of her best friends, back in 1972 when we were both newly called lawyers. I am certain she is a bright, engaging, articulate, confident and ambitious woman. I am sceptical of her judicial credentials and concerned for the direction she will seek to steer the Supreme Court.
  
  There are few public figures about whom citizens should know more than a Supreme Court justice, yet the opposite is true. This is so because in both Canada and the United States “the public - under the tutelage of its moral and intellectual leaders – is being trained as regards the Supreme Court when it is interpreting the Constitution, to accept its rulings as if rendered ex cathedra, on questions of faith and morals.”[1]
  
  Since 1982 and the passage of the Charter of Rights and Freedoms, our ruling federal politicians, without exception, have deferred to the Supreme Court justices the role of interpreting what are the nature of rights that are to be protected, and what changes to our traditional institutions must be instituted to ensure our laws do not infringe upon Charter based rights. This has led to the phenomenon of un-elected and unaccountable (to the public) judges making rather than interpreting laws.
  
  During this same period Canada has come to be less and less recognizable as a nation whose laws and institutions are based on a belief in God, despite the direct references to that reality in both our national anthem and the preamble to the Charter of Rights. Still a significant majority of Canadians call themselves Christian and an even greater majority believes in the existence of God.
  
  A powerful and effective campaign to muzzle the expression of our beliefs in the context of how we are governed has put us even more at the mercy of our judiciary.
  
  Justice Abella, along with Justice Louise Charron will soon join the 9 member court. Who is she and what should we expect from her?
  
  I found the following quotes from various speeches made by Rosalie Abella over the past 10 years or so:
  
  To me there are no models of justice past or future. There is only justice.
  
  Justice is the issue. How do we get it, keep it, protect it?
  a) by protecting people’s dignity, humanity and freedoms.
  b) by laying siege to the culture of indifference in which we permitted ourselves to indulge, and replace it with a culture of commitment.
  
  I speak to you as someone with an idealized and romantic view of the power of law and of lawyers.
  
  How can we teach people to value morality when there is no reward for compliance and no punishment for its violation?
  
  Trials are too late. Trials are a response not a solution. Where injustice is preventable it should be prevented when first identified.
  
  As a member of a human family that saw the Holocaust, I feel I have gained the right to expect everyone else to share my fear of intolerance.
  
  The three speeches I found all made reference to her history as the child of two holocaust survivors born in 1948 in a displacement camp in Nuremberg. Her father was a lawyer and the only survivor of his family. Her parents also lost their 2 ½ year old son while in Treblinka. Her Jewishness, her sex, and her link to the Holocaust appear to have totemic significance for her.
  
  As a self proclaimed romantic when it comes to the role of the law and to the dominance in her professional career of matters related to the interpretation, protection and even creation of rights and so-called equity with respect to matters of employment, it is apparent that Justice Abella has a classic liberal philosophy that seeks to allow every individual to achieve his or her fullest potential, and to as much as possible protect everyone from the consequences of intolerance. “Dignity, humanity and freedoms” are the key. No doubt she also believes that education can solve most of society’s ills.
  
  Her assertion that there are no models of justice is puzzling. Surely it would have been useful to question her on this assertion, and to enlighten us with her interpretation of justice.
  
  Andrew Coyne reported on two of her decisions, each of which gives one pause to consider whether she can be depended upon to dispense justice wisely or at all. In Miglin v. Miglin she invoked the novel judicial principle that a final divorce settlement is never actually final, whatever the parties may have understood. In Barker v. Francis she ruled divorce courts could not find a child support award as “inappropriately” high. They could only find it “inappropriately” low. Both were overturned by the Supreme Court (at great expense to the litigants one must not forget).
  
  Let me illustrate with references to three other of her judgments, what might appear to many Canadians to be questionable decisions posing as justice:
  
  In April 1995, she decreed it was in a child's "best interests" for the custodial mother to remove the child to another continent (Australia), away from the father, who was resident in Canada, even though the father had faithfully made his support payments. This decision effectively denied the father access to his child. (This decision was overturned by the Supreme Court of Canada.)
  

Just one month later, in May 1995, Ms. Abella ruled that since anal sex is "a basic form of sexual expression for gay men," … that the provision in the Criminal Code that required the age of consent for such sexual activity be set at 18 years was discriminatory. She stated: (See Reality, July /August 1995, "Title of Article," p. 7): "Court Lowers Age for Homosexual Sex."

the provision perpetuates rather than narrows the gap for a historically disadvantaged group - gay men- it does so arbitrarily and stereotypically, and is, therefore, a discriminatory provision which infringes the guarantee of equality.

In 1998, Judge Abella was at it again, this time in the Rosenberg case, declaring that homosexual partners were "spouses" within the meaning of the Income Tax Act. As usual, she provided no reasonable or logical argument in her controversial conclusion and stated instead (See Reality, May/June 1998, "Courts Reject Traditional Values," p. 3):

… elected governments may wait for changing attitudes in order to preserve public confidence and credibility. Both public confidence and institutional credibility argue in favour of courts being free to make independent judgments notwithstanding those same attitudes.

The last decision reveals the two most troubling traits I detect in Justice Abella – that of the judicial activist not content to interpret the law, but intent on making it. It also reveals a sense of morality far removed from the mainstream of the majority of Canadians (if the statistics on belief in God and Jesus is to be believed), but one firmly embraced by the cultural aristocracy of the news media, university faculties, and even now many churches.

One of the first cases Justice Abella will hear is the enormously important reference with respect to same-sex marriages. If one opposes any change to the definition of marriage from that of a union between one man and one woman, it seems impossible to be sanguine about the prospects of a favourable ruling from Justice Abella.

Our nation, and western culture generally is in a time of great moral confusion about sex and particularly about homosexuality. Pornography passes for art, the North American Man/Boy Love Association is actively working toward the end of removing the taboo against pedophilia (involving boys, not girls – a clever tactic of the degenerate crowd to beguile the muddleheaded liberal into thinking this is a meaningful concession). Polygamists, polyamorists and homosexual Boy Scout leaders eagerly await the next judicially inflicted tear to the fabric of what remains of the curtain of civilization that separates us from barbaric anomie.

The appointment of Rosalie Abella serves only as a lightning rod upon which to focus the distemper of our age. Our nation’s moral desuetude is only a symptom of a greater malaise. More important (for it is the nature of mankind to constantly lose its moral way) is the fact our government has lost its way. Our governors have forgotten what it means to govern, and we the governed have become apathetic, disillusioned, frustrated, angry and disaffected.

Mr. Martin would do well to read Orestes Brownson. [2]

“The nature or essence of government is to govern. A government that does not govern is simply no government at all. If it has not the ability to govern and governs not, it may be an agency, an instrument in the hands of individuals for advancing their private interests, but it is not government.

The assertion of government as lying in the moral order, defines civil liberty, and reconciles it with authority. Civil liberty is freedom to do whatever one pleases that authority permits or does not forbid. Freedom to follow in all things one’s own will or inclination, without any civil restraint, is license, not liberty. There is no lesion to liberty in repressing license, nor in requiring obedience to the commands of the authority that has the right to command”.[3]

The Liberal government’s failure to govern is glaringly obvious in its refusal to assert its authority to forbid the erosion of the foundation of our society – the family – opting instead for license and not liberty. Its nomination of a woman with such a record of judicial activism as has Justice Abella, signals a continued refusal to accept the responsibilities of governance so eloquently described by Orestes Brown.

[1] William F. Buckley Jr.
[2] Brownson (1803-1876) covered all the bases in his spiritual journey. He was a Presbyterian, then a universalist, then a devotee of secular, utopian socialism, next a humanitarian activist, a militant atheist, a trascendentalist and ultimately a devout Catholic.

[3] The American Republic, Brownson, Orestes ISI Books, p 17