Many Years back in 2000. I wrote to the then Chief Justice hoping to have a glimmer of what was happening in our court system and hinted why feminist influence was so strong in deciding court cases. As people should be concerned about our court system, when there has been for many years talk about outside influences taking over our courts. I have to admit, I was very surprised to even get an answer back from him in the first place, and considering what was said by Ex-Chief Justice McEachern, it is no wonder the way things are.
So fathers that are having a real hard time getting to see the children or being treated fairly by the courts when it comes to divorce issues. You can read Why?
Below is what I wrote to the Chief Justice then on his website and his response back to my self, as he was running a court website at the time, which has been removed by the government and a great many other of his comments at the time were very interesting which pointed to a lot things that needed to be questioned about our court system. So what happened to the Rule of Law then.
Dear Chief Justice McEachern,
Below is the Question November 6, 2000 (Canada's Chief Justice lends credence to the charge that outsiders secretly influence her court, un-elected judges who are implementing a radical social policy agenda developed and promoted by socialist, feminist and homosexual lobby groups and their allies in the law faculties of Canada's universities.)
Would you explain why that some outside lobby groups can interfere in court procedures and this "notwithstanding clause," As it seems to me that the court system is really being run by Lobbing Groups who promote "Bias", The people of this province seemed to be having a good look at what's being done, even in family court....
Response from Chief Justice McEachern in Canada on charge that outsiders secretly influence the courts
Response from Chief Justice McEachern
Chief Justice McEachern's Response No. 35; November 14, 2000 - "The Court Party"
A message asks for comments on two recent news stories: first, the published views of University of Calgary Political Science Professor Ted Morton about the "Court Party"; and second, the direction of the Chief Justice of Canada to law professors not to send their published or unpublished writings on legal matters to the court's law clerks. These are related, controversial matters upon which I can only offer some information.
First, Professor Morton has coined the term "Court Party" to describe unstructured collections of persons with well known agendas who, he suggests, wish to influence the judges of the Supreme Court of Canada (and other judges as well) towards a particular ideology. Generally speaking, these views tend to support a Charter-activist approach to social issues. The so-called "feminist" movement is but one of the leading groups identified by Professor Morton. His view is that these "movements" prefer judicial activism -- bringing controversial cases to the Court-- to the more conventional political or parliamentary approach to social change through legislation. Hence the description "Court Party". No such party, of course, exists in any of the usual forms by which we would usually identify a political party.
There is no doubt that the trend of judicial decisions, led largely but not entirely by the Supreme Court of Canada, has been to expand "Charter rights" and to use the Charter for social purposes. Whether this is what the law really requires, or whether it constitutes, in some cases, an intrusion into the proper role of Parliament and the legislatures is a question that is being much debated at the present time. In some cases, the Court may be doing only what it is expected to do, that is to decide the cases before it. In other cases, some think the Court has gone too far and should leave social reform to elected legislators. On that question I express no opinion because to do so would require me to agree or disagree with some Court decisions, and I should do that only in the context of a case I am required to decide.
I can, however, give an example. In Mrs. Rodriguez's case, I held that a section of the Criminal Code was unconstitutional because it purported to prohibit her from getting assistance to commit suicide when her illness reached the stage when she no longer wished to live. I thought this breached some of her Charter rights. Mine, however, was a dissenting opinion. Both our Court of Appeal and the Supreme Court of Canada, by majorities, upheld the validity of the Criminal Code section. Was I being impermissibly "activist" or was I just deciding the case as I thought it should be decided? Remember, those who say these matters should be left to Parliament would give Mrs. Rodriguez no remedy during her lifetime even if the Charter could be interpreted to give such a right to her.
The judges of the Supreme Court of Canada and all other judges, of course, are fully aware of the views of Professor Morton and others who share his views. Some will regard some judicial decisions as impermissibly "activist", and others will say the judges are just deciding the case before them. It must be expected that judges will continue to decide cases as they think the cases should be decided, and Parliament will always have the last word, if it wishes, either by changing the law, or by exercising the "notwithstanding" clause in the Charter. For a description of this clause, see Chapter 8, section 33 of the Compendium that can be found on the home page of the British Columbia courts at:
http://web.archive.org/web/20020120212800/http://www.courts.gov.bc.ca/.
Turning to the second question of professorial influence, there can be no doubt that the Supreme Court relies very heavily upon academic writing. Unlike the lower courts, where academic writings are seldom mentioned, the decisions of the Supreme Court are replete with references to what various professors have said about the subject of the case being decided. In many cases the judges cite more articles than decided cases as authorities for the views they express, even though counsel may not have mentioned the articles in their arguments as the case progressed through the courts. This is a marked change from the former view that a judge should never rely upon the views of a living author because he or she might undergo a change of mind. Reliance upon academic opinion, however, is probably too well entrenched in our law to be avoided.
Law clerks are graduates of law schools who have not yet been called to the bar. Each judge of the Supreme Court of Canada has at least three law clerks to assist in preparing for hearings and in drafting reasons for judgment. This is now the rule in the American federal justice system where the judges have both law clerks and staff lawyers to assist them, but this practice is largely unknown in England. In Canada some provincial superior courts have very few or no law clerks. In British Columbia, most appeal court judges usually share the services of one clerk with another judge, but some judges do not use law clerks at all. In our superior trial court, there is usually one law clerk to assist four or five judges.
Law clerks are not expected to participate in the decisional process. They are intended to be research assistants. One of the job functions of law clerks in the Supreme Court of Canada is to bring relevant academic writings to the attention of the judges because, as already mentioned, counsel do not usually rely on academic writings to support their arguments. They are usually more concerned with the particular facts of their cases and the existing law. More and more, however, the Supreme Court of Canada, and indeed the justices of the Supreme Court of the United States seem to be more influenced by the views of social scientists than by the views of the lower courts or by the arguments of lawyers.
What seems to have happened is that some professors, knowing which cases are pending before the court, have sent some of their published or unpublished writings to law clerks who may be known to them, obviously for the purpose of informing or influencing them. Whether any such information has been passed on to judges by the clerks is not known. If it was, it may have breached the well-known rule that no one should attempt to influence a judge. It must be remembered, however, that published opinions may have been discovered by law clerks anyway because that is one of the things they are expected to do.
It is understood, however, that sending material to law clerks only happened on a very few occasions, and once the practice became known, the Chief Justice acted swiftly in directing the academic community to discontinue sending any material to law clerks. Presumably, this direction will be respected.
Chief Justice McEachern
Other Judges have come right out and stated fathers have no rights Here is what other judges have said in the courts even on birth reg.
The QUOTE'S FROM THE BC SUPREME COURT Judges in another case, who made it very clear in cases before them how they really feel about men, fathers.
-- Madam Justice Mary Southin (British Columbia)
"The legislature...has decreed that fathers have no rights in British Columbia"
"The legislature no longer considers that marriage ... is a social institution of paramount or, ... any importance. ... The appellant is in no worse legal position than any other father."
"... The legislature has left no 'gap' in this question of a child's name and surname. It has decreed that fathers have no rights."
-- Madam Justice Mary Newbury, concurring:
"I acknowledge that the comprehensive plan adopted by the legislature ... will not work perfectly in every case. ... But there is good reason to believe [giving fathers an absolute right to be included in the registration] would cause far more harm than good and would be unreasonable in most cases where the problem arises."
Response 178; May 8, 2002 – “Parens Patriae Jurisdiction”
I have received a question asking, “What is the parens patriae jurisdiction of our courts?”
The phrase “parens patriae” is a Latin phrase meaning “father of his country” or “parent of the country”. The phrase has its historical origins in English common law and referred to the King, or sovereign, who had the power of guardianship over persons under a disability, meaning persons who were mentally incompetent. The parens patriae jurisdiction was later extended to cover children.
In modern usage, the parens patriae jurisdiction of the court refers to the role of the judge as the protector of the rights of a person, usually a child, whose position would not otherwise be adequately represented in the proceedings. It underlies the Court’s duty to act in the best interests of the child, which often arises in family law cases.
Mr. Justice La Forest, in the Supreme Court of Canada’s decision in Re Eve, [1986] 2 S.C.R. 388 at 425, said this about the parens patriae jurisdiction of the courts:
The parens patriae jurisdiction is … founded on necessity, namely the need to act for the protection of those who cannot care for themselves. The courts have frequently stated that it is to be exercised in the “best interest” of the protected person, or again, for his or her “benefit” or “welfare”.
The situations under which it can be exercised are legion … the jurisdiction is of a very broad nature, and … it can be invoked in such matters as custody, protection of property, health problems, religious upbringing and protection against harmful associations. …
Response 202; May 14, 2003 – “Compliance with Court Orders”
I have received an email from a writer who asks about the use of the court’s power to hold someone in contempt of court for failure to obey or comply with an earlier order of the court.
Generally speaking, the failure to obey a court order can amount to contempt of court and there are provisions in the Supreme Court Rules addressing this situation. However, the power to hold someone in contempt is rarely used and is really a “last resort” mechanism for enforcing court orders. It is generally accepted that if respect for the authority of the court is to be maintained, the court must have the power to compel compliance with its orders. If persons could breach court orders at will, with no consequence to them, court orders would become meaningless and anarchy would follow.
Contempt of court is a broader subject than is raised by this question. For further reading, I refer interested viewers to chapter 22 of the Legal Compendium on the Courts’ website and to “Some Guidelines on the Contempt Powers” found on the website of the Canadian Judicial Council at www.cjc-ccm.gc.ca This latter document is the result of a study by a committee of the Canadian Judicial Council and provides a very comprehensive overview of contempt of court.
Response 194; December 5, 2002 – “Principles of Fundamental Justice”
I have received an email in which the writer asks for a definition of the phrase “fundamental principles of justice”. I assume that the phrase to which the writer refers is, in fact, “principles of fundamental justice”.
Section 7 of the Canadian Charter of Rights and Freedoms provides that “Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.”
Since the Charter came into force, many Canadian courts have considered the meaning of the phrase “principles of fundamental justice” in section 7. Unfortunately for the writer of the email, given the nature of the phrase and its context in section 7, the Courts have not offered an exhaustive definition of the principles of fundamental justice. In one of its earliest decisions regarding the Charter, the Supreme Court of Canada considered the meaning of the phrase “principles of fundamental justice” in the case of the Reference re Section 94(2) of the Motor Vehicle Act (British Columbia), [1985] 2 S.C.R. 486. In this case, Mr. Justice Lamer (who later became the Chief Justice of Canada) noted that the phrase “principles of fundamental justice” does not refer to a specific right, but qualifies the right not to be deprived of “life liberty and the security of the person” (as stated in the first part of section 7 of the Charter). Mr. Justice Lamer stated (and I quote from the head note to the case):
The principles of fundamental justice are to be found in the basic tenets and principles not only of our judicial process but also of the other components of our legal system. These principles are not limited to procedural guarantees, although many are of that nature. Whether any given principle may be said to be a principle of fundamental justice within the meaning of s. 7 must rest on an analysis of the nature, sources, rationale and essential role of that principle within the judicial process and our evolving legal system. The words “principles of fundamental justice”, therefore, cannot be given any exhaustive content or simple enumerative definition but will take on concrete meaning as the courts address alleged violations of s. 7.
Since 1985, there have been several decisions of the Supreme Court and appellate courts across Canada in which these Courts have considered section 7 of the Charter. I recommend that anyone interested in learning more about section 7 and the phrase “principles of fundamental justice” contact the closest law library.
Response 161; September 27, 2001 - "The Charter - An instrument of public safety?"
I have received an inquiry from a person asking, "is the Canadian Charter of Rights and Freedoms an instrument of public safety, in the sense of conferring a procedural right to forestall or prohibit governmental policy or actions that impose jeopardous conditions on persons?"
The short answer to this question is no, the Charter is not "an instrument of public safety" in the sense the questioner suggests. Legislation, a reflection of governmental policy, is required to conform to the Charter, but until the legislation is enacted there is no means of testing its constitutionality. Governments make all reasonable efforts to ensure that legislation does conform to the Charter's requirements.
Governments, like citizens, must act according to law. If government "actions" are thought not to comply with law, redress in the courts may be sought. Legality of governmental action is to be judged not only by the Charter, and other constitutional provisions, but by all applicable statute and common law as well.
Discrimination in Family Matters
Response No. 36; November 22, 2000 - "Discrimination in Family Matters"
I have received a message from a "Divorced Father" complaining of gender discrimination against men in the justice system, and alleging that statistics demonstrate bias against men.
I receive a number of similar messages, all making more or less the same complaint. This one asks if I "believe this problem exists". I expect that unweighted statistics would probably establish that more mothers than fathers succeed in proceedings relating to custody and child maintenance, while very few fathers are denied access except in exceptional circumstances. This, however, in no way demonstrates either discrimination or bias. This is because these unweighted statistics in no way establish that any of the cases in the sample were wrongly decided.
A wise judge once wrote that every case must be decided on its own particular facts. Because of family dynamics, with more fathers being the bread winners than mothers (although that may be changing), it is not surprising that the most reasonable distribution of responsibilities in many cases will leave day-to-day responsibility for child-rearing with the mother, and financial support being the responsibility of the father.
It must be remembered, however, that every case is considered on its own particular merits. In cases where the child or children will be better off with the father, then that is the order that will be made. In the Court of Appeal we have the responsibility to review these cases frequently. In most cases we are satisfied that the trial judge has reached the right decision after applying the over-arching rule that the primary consideration is the best interests of the children. In those few cases where we think otherwise, we vary the order made the trial judge. When these cases are looked at objectively, there is no room for discrimination or bias to play any part in the decisional process.
The stated conditions under which I operate this Home Page make it clear that I cannot comment on the results of individual cases. Thus, even if I knew the specific facts of a particular case or a volume of cases, I would not be able to comment on them. I wish to add, however, that an allegation of discrimination or bias without a specific context, which is frequently made against judges, particularly by litigants dissatisfied with the result of a proceeding, is not a helpful basis for a useful discussion of legal or judicial matters.
Appeals
Response No. 145; May 1, 2001 - "Length of Time for Court of Appeal to Release a Judgment"
I have received a message from a litigant asking, "what is the approximate length of time it takes the Court of Appeal to come to a decision, once it has heard a personal injury case?"
The answer is that, for the British Columbia Court of Appeal, 50% of our cases are decided on the bench as soon as argument is completed. In the other 50% of our cases where judgment is reserved for consideration, a written judgment is usually produced in about one month.
The writer mentions that his or her case was heard 3.5 months ago and that he or she does not yet have a decision. Of course, I do not know anything about the case, but I can say that the Canadian Judicial Council has published a guideline suggesting that reserved decisions should be delivered within six months of the hearing date.
Six months sounds like a long time, but a judgment may be reserved early in a two-week sitting period, during which the judges will probably not have the time to prepare a written decision. The judges (at the British Columbia Court of Appeal) then have two weeks to write judgments, some of which may have been reserved from an earlier sitting period because few judges can keep their writing current. When the judge writes a draft judgment and circulates it to the other judges on the panel hearing the case, the other judges have to read and consider what has been written, which may take some further time. Then, the other judges on the panel may decide that they wish to write a concurring or dissenting judgment, or they may make suggestions for changes to the original draft. While this process is going on, other cases are being heard and reserved, and they tend to pile up. Also, of course, some cases are much more difficult than others and priority may be given to the easier cases to get them out of the way.
It is not always as easy to complete a judgment as quickly as one might wish. I recently delivered a very difficult judgment in a medical malpractice case where I estimate that I spent well over two months actually working on just that one case (with sitting time and the preparation of other judgments going along at the same time). Then, when I was finished, one of my colleagues agreed with my decision, while the other one decided he did not agree and we had to wait for him to write his dissenting judgment. We were able to get the final judgment delivered in about five months time, but it was a very difficult case.
I understand the concern the writer expresses about the anxiety of waiting for a judgment, but I can assure him or her that the judges are very aware of this and are doing their very best to get their judgments delivered as quickly as possible.
Thank you.
False Affidavits
Response No. 134; April 2, 2001 - "False Affidavits"
I have received a question about false affidavits. The writer suggests that the courts should check the contents of affidavits and respond swiftly if what is said in the affidavit is false. The writer asks why someone else should have to go to the cost and expense of proving the affidavit contains lies. The simple answer is that the Court receives a great many affidavits every day and does not have either the staff, or the information required to identify falsity in affidavits. Also, many complaints about affidavits are simply that the complainant has a different opinion about the facts than the deponent. Perjury, the remedy for a false affidavit (apart from an award of costs or the possible dismissal of a claim or defence) requires proof of a deliberately false statement intended to deceive. As just mentioned, most questioned affidavits are believed to be correct, or the intended falsity cannot be proved beyond a reasonable doubt. The Courts proceed on an adversarial basis and affidavits are sworn and filed at the peril of the deponent who can be sometimes proven wrong, but that is for the other parties to prove. The Court, on the other hand, tries to maintain a neutral position and does not undertake investigations into matters where it may later have to determine whether the affidavit is in fact true or false. When deliberate falsity is established, the Court usually acts decisively, but as I have said, many differences about affidavits are really just differences of opinion.
Response 207; November 28, 2003 – “Swearing a False Affidavit”
I have received an email from a writer who asks, “Is there any impact on a proceeding when counsel for a party knowingly notarizes a false affidavit?”
It is unprofessional conduct for a lawyer knowingly to mislead the Courts, and the swearing of an affidavit that the lawyer knows contains false information may result in disciplinary proceedings. The Law Society of British Columbia governs the conduct of lawyers in the province and the Professional Conduct Handbook sets out various rules of conduct that all lawyers must follow. For more information about the Law Society of British Columbia and professional conduct of lawyers, please see the information provided on the Law Society’s website at: http://web.archive.org/web/20050405024331/http://www.lawsociety.bc.ca/
In an earlier response, Response No. 134, April 2, 2001 , there is a further discussion about false affidavits, although it does not address the situation of a lawyer knowingly swearing a false affidavit.
Sworn Statements
Response No. 18; April 26, 2000 - "Sworn Statements"
I have received a message asking about the Court's alleged disinterest in the follow-up of sworn testimony that is proven to be untrue. There is reference to inconsistent or contradictory sworn statements and the question is asked: "Does the Court not consider the truth of sworn statements to be vitally important to the integrity of the court process and to the efficiency of proceedings?"
The answer is, of course, that the Court is vitally interested in the integrity of its processes. However, our experience is that in recalling precisely what happened, usually some time ago, memories play tricks on witnesses and witnesses usually believe they are telling the truth. It is not an offence to be wrong unless it is proven that there has been knowing, deliberate untruthfulness.
There is probably more untruthfulness in affidavits than in oral testimony. No one knows why this is. It is probable that the solemnity of court proceedings, and the knowledge that what one says will be immediately challenged on cross-examination, contributes substantially to the search for truth.
Deliberate, knowing lying is seldom seen. Stretching the truth, or exaggeration, is much more difficult to identify with the certainty that is required for any useful action to be taken.
It is usually possible to identify inconsistent sworn testimony, but this is infrequent. It is, of course, an offence to give inconsistent sworn testimony.
The question of follow-up is difficult. Generally speaking, as with contempt, judges prefer to leave follow up to the parties or to the Attorney General. This is because the judges will have to judge the charge of perjury, if any, and they do not wish to be both accuser and judge. Besides, when perjury or "near perjury" is suspected, the best course is usually for the judge to get on with the completion of the case (in which the parties usually have a very substantial investment). Often, addressing the truthfulness of a witness's testimony can be dealt with in the decision of the case, and that is usually a sufficient response to suspected untruthfulness. If the matter is serious enough, the judge may report it to the Attorney General; however, this happens rarely and there are very few prosecutions for perjury.
Generally speaking, perjury is a serious offence, but it seldom affects the outcome of proceedings because judges usually recognize it and do not allow it to influence the outcome of a case. More serious, however, is the difficulty of being sure that an incorrect statement is intentionally false. We could devote loads and loads of judicial time to suspected perjury, but most prosecutions would fail on reasonable doubt about the issue of whether the inaccuracy was deliberate or just an honestly believed mistake.
For further information about the issue of credibility of witnesses and their testimony, readers can go to chapter 10 of the Compendium of Law which can be found at: http://www.courts.gov.bc.ca/LegalCompendium/index.html
Thank you.
Lying Under Oath
Response No. 77; February 6, 2001 - "Lying Under Oath"
I have received the following question, "If a person is found to be lying under oath, will all his or her testimony be considered inadmissible?"
Lying under oath may be perjury and it might affect the credibility of the witness when the lying is discovered, but that does not make the evidence inadmissible. Once a witness has given evidence, the evidence becomes part of all of the evidence in the case that the judge will assess to determine what "weight" or "believability" factor the specific evidence should be given. For example, if a witness were to lie about his or her age, or address, or something like that, but gave other believable evidence, then the former would be rejected, and the latter accepted. Judges habitually instruct juries that they may accept or reject all or any part of the evidence of a witness. Lying under oath is only perjury if it is given falsely with intent to mislead. All judges have seen witnesses who give some believable evidence and some unbelievable evidence. All incorrect evidence is not necessarily lying or perjury. For example, a witness may be mistaken, or forgetful, about some facts, and absolutely correct about other facts. Many cases are decided on what lawyers and judges call the "credibility" of the witnesses, and deciding what to believe and what to reject is one of the hardest parts of a judge's and a jury's job.
I hope the foregoing helps.
Race in the Charter, s. 15
Response No. 57; December 18, 2000 - "Race in the Charter, s. 15"
I have received an interesting message asking about section 15 of the Charter. I cannot conveniently summarize the question, so I will quote it in full:
The Equality Rights section [section 15] of the Canadian Charter of Rights and Freedoms states: "Every individual is equal before and under the law and has the right to the equal protection and equal benefit of the law without discrimination and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."
I have highlighted the word "race."
Is there a legal basis, or legal definition, or legal concept of "race"? If the Charter acknowledges an acceptance of the concept of "race", what then are the different categories of "races" of human beings that would be protected by section 15 (1) of the Charter?
I believe that there is a consensus today, which the Charter does not seem to acknowledge or accept that there is only one race, the human race. In 1968, UNESCO declared: "All living people belong to the same species and descend from the same stock. People appear to have equal biological potentialities for reaching any sociocultural levels."
Today, even though human variability is still studied, modern human biology and genetic sciences have abandoned the use of the concept of "race." Most recently, the Human Genome Project reached the key conclusion that we all are, regardless of our ethnic ancestry, genetically 99.9 per cent the same. Social scientists, too, are no longer using the term "race" as a label for social groupings. They are using the social term "ethnic" to represent properly the scientific and social reality.
In my view, the Equality Rights provision of the Charter, through the use of the word "race", perpetuates the myth of "races of people" and a belief in this myth. It thus, ironically, encourages racism [the system of beliefs that assumes there is a link between inherited physical traits and social and psychological traits]. Racism, after all, makes use of the obsolete biological category of race and misuses and abuses it a social context to label arbitrarily social groups, such as ethnic communities, religious groups or sects, peoples and nations, linguistic and cultural groups.
I would appreciate your comments on this matter.
This is a difficult question to answer because it touches upon so many different aspects of human activity, and I have not had to consider it in any particular context. For that reason, I do not wish to be taken to be agreeing or disagreeing with the content of the message.
I can suggest, however, that the real purpose of section 15 of the Charter is to protect disadvantaged persons against discrimination. In this endeavour, s. 15 has established certain categories of persons who must not suffer discrimination (by reason of "race, national or ethnic origin, colour, religion, sex, age or mental or physical disability"). These categories have been enlarged by judicial decision to include what are called "analogous grounds" such as family status (i.e. common-law couples) and sexual orientation. I have attempted to describe the operation of section 15 in Chapter 8 of the Legal Compendium, which can be found on the Courts' Home Page at: http://web.archive.org/web/20050405024331/http://www.courts.gov.bc.ca/
It must be remembered that the Charter was enacted in 1982. In defence of the drafters, who need no defence from me, many problems with discrimination prior to, and possibly since that time, have arisen in circumstances where "race" was the most understandable word to use in this connection. The great American jurist, Oliver Wendell Holmes, wrote in 1881 that "The life of the law has not been logic; it has been experience." The choice of "race" in section 15 probably reflects the experience both of the law and of society to that time, but even then, Parliament also included "national or ethnic origin" as protected categories.
Moreover, there has been an explosion of scientific learning and discovery since the enactment of the Charter. Some of the views mentioned in the above message have been identified, or become more widely discussed, since 1982. Constitutional language, however, is usually given an expansive (and sometimes expanding) interpretation. In 1932, another great American jurist, Louis D. Brandeis, wrote "… the Court bows to experience and the force of better reasoning, recognizing that the process of trial and error, so fruitful in the physical sciences, is appropriate also in the judicial function".
In the same passage Judge Brandeis also said: "… in cases involving the Federal Constitution, where correction through legislative action is practically impossible, this Court has often overturned its previous decisions." This difficulty of change also exists in Canada where the consent of Parliament and all the provinces would be required to amend the Charter. But I apprehend that in Canada, as in the United States, the meaning given to any particular word or thought in the Charter will be given the meaning that best carries out the Charter intention of reducing or eliminating discrimination.
However, it should be noted that companion human rights legislation passed by Parliament in the federal sphere and by the Legislatures in the provincial sphere, is more easily amended, and it is reasonable to expect that changes in the language of their enactments will be made to conform to developing learning as may be required.
Thank you.
The Court Party
Response No. 35; November 14, 2000 - "The Court Party"
A message asks for comments on two recent news stories: first, the published views of University of Calgary Political Science Professor Ted Morton about the "Court Party"; and second, the direction of the Chief Justice of Canada to law professors not to send their published or unpublished writings on legal matters to the court’s law clerks. These are related, controversial matters upon which I can only offer some information.
First, Professor Morton has coined the term "Court Party" to describe unstructured collections of persons with well known agendas who, he suggests, wish to influence the judges of the Supreme Court of Canada (and other judges as well) towards a particular ideology. Generally speaking, these views tend to support a Charter-activist approach to social issues. The so-called "feminist" movement is but one of the leading groups identified by Professor Morton. His view is that these "movements" prefer judicial activism -- bringing controversial cases to the Court-- to the more conventional political or parliamentary approach to social change through legislation. Hence the description "Court Party". No such party, of course, exists in any of the usual forms by which we would usually identify a political party.
There is no doubt that the trend of judicial decisions, led largely but not entirely by the Supreme Court of Canada, has been to expand "Charter rights" and to use the Charter for social purposes. Whether this is what the law really requires, or whether it constitutes, in some cases, an intrusion into the proper role of Parliament and the legislatures is a question that is being much debated at the present time. In some cases, the Court may be doing only what it is expected to do, that is to decide the cases before it. In other cases, some think the Court has gone too far and should leave social reform to elected legislators. On that question I express no opinion because to do so would require me to agree or disagree with some Court decisions, and I should do that only in the context of a case I am required to decide.
I can, however, give an example. In Mrs. Rodriguez’s case, I held that a section of the Criminal Code was unconstitutional because it purported to prohibit her from getting assistance to commit suicide when her illness reached the stage when she no longer wished to live. I thought this breached some of her Charter rights. Mine, however, was a dissenting opinion. Both our Court of Appeal and the Supreme Court of Canada, by majorities, upheld the validity of the Criminal Code section. Was I being impermissibly "activist" or was I just deciding the case as I thought it should be decided? Remember, those who say these matters should be left to Parliament would give Mrs. Rodriguez no remedy during her lifetime even if the Charter could be interpreted to give such a right to her.
The judges of the Supreme Court of Canada and all other judges, of course, are fully aware of the views of Professor Morton and others who share his views. Some will regard some judicial decisions as impermissibly "activist", and others will say the judges are just deciding the case before them. It must be expected that judges will continue to decide cases as they think the cases should be decided, and Parliament will always have the last word, if it wishes, either by changing the law, or by exercising the "notwithstanding" clause in the Charter. For a description of this clause, see Chapter 8, section 33 of the Compendium that can be found on the home page of the British Columbia courts at: http://web.archive.org/web/20050405024331/http://www.courts.gov.bc.ca/
Turning to the second question of professorial influence, there can be no doubt that the Supreme Court relies very heavily upon academic writing. Unlike the lower courts, where academic writings are seldom mentioned, the decisions of the Supreme Court are replete with references to what various professors have said about the subject of the case being decided. In many cases the judges cite more articles than decided cases as authorities for the views they express, even though counsel may not have mentioned the articles in their arguments as the case progressed through the courts. This is a marked change from the former view that a judge should never rely upon the views of a living author because he or she might undergo a change of mind. Reliance upon academic opinion, however, is probably too well entrenched in our law to be avoided.
Law clerks are graduates of law schools who have not yet been called to the bar. Each judge of the Supreme Court of Canada has at least three law clerks to assist in preparing for hearings and in drafting reasons for judgment. This is now the rule in the American federal justice system where the judges have both law clerks and staff lawyers to assist them, but this practice is largely unknown in England. In Canada some provincial superior courts have very few or no law clerks. In British Columbia, most appeal court judges usually share the services of one clerk with another judge, but some judges do not use law clerks at all. In our superior trial court, there is usually one law clerk to assist four or five judges.
Law clerks are not expected to participate in the decisional process. They are intended to be research assistants. One of the job functions of law clerks in the Supreme Court of Canada is to bring relevant academic writings to the attention of the judges because, as already mentioned, counsel do not usually rely on academic writings to support their arguments. They are usually more concerned with the particular facts of their cases and the existing law. More and more, however, the Supreme Court of Canada, and indeed the justices of the Supreme Court of the United States seem to be more influenced by the views of social scientists than by the views of the lower courts or by the arguments of lawyers.
What seems to have happened is that some professors, knowing which cases are pending before the court, have sent some of their published or unpublished writings to law clerks who may be known to them, obviously for the purpose of informing or influencing them. Whether any such information has been passed on to judges by the clerks is not known. If it was, it may have breached the well-known rule that no one should attempt to influence a judge. It must be remembered, however, that published opinions may have been discovered by law clerks anyway because that is one of the things they are expected to do.
It is understood, however, that sending material to law clerks only happened on a very few occasions, and once the practice became known, the Chief Justice acted swiftly in directing the academic community to discontinue sending any material to law clerks. Presumably, this direction will be respected.
Mobility Rights
Response No. 19; April 28, 2000 - "Mobility Rights"
I have received a question from an Internet writer who asks about the mobility rights of adults and children. I have no further information about the writer's situation.
A discussion about mobility rights under section 6 of the Charter of Rights and Freedoms can be found in the Compendium of Law, which is published on the British Columbia courts' web site: http://www.courts.gov.bc.ca/LegalCompendium/index.html
In addition, the Supreme Court of Canada has judicially considered a parent's mobility rights in the decision of Gordon v. Goertz. This decision can be accessed through the Supreme Court of Canada's web site at: http://web.archive.org/web/20050405024331/http://www.droit.umontreal.ca/doc/csc-scc/en/pub/1996/vol2/html/1996scr2_0027.htmll
Preferential Treatment
Response No. 13; March 14, 2000 - "Preferential Treatment"
I have received a message alleging that the courts treat women better than men. The writer refers particularly to section 43 of the Criminal Code that provides:
Every schoolteacher, parent or person standing in the place of a parent is justified in using force by way or correction toward a pupil or child, as the case may be, who is under his care, if the force does not exceed what is reasonable under the circumstances.
The Interpretation Act of Canada (and of the provinces) provides that the masculine in a statute includes the feminine and vice versa.
Very few charges are laid under this section, and I have no knowledge of whether there are more men charged than women, but there may be. Charges under this section are started in the Provincial Court, so I have not seen one in the twenty (or more) years I have been in the Superior Courts.
The allegation that women are treated better than men is often heard, but it is impossible to say whether it is justified without knowing what the facts were in any particular case. As I have said before, the responsibility of the judge at every level of the court system is to do what is best for the child. In any particular circumstance, the wife may be in a better position to look after a child than a father, but that is not always the case by any means, and custody is often given to fathers if the judge thinks that is the right thing to do.
There is also an allegation that women get away with breaching court orders more easily than men. I have no way of knowing if this is true or not in a general sense. It is simply not true in the cases I know about, but again, it is necessary to know precisely what the facts were before it is possible to speak confidently about any particular case. The courts, of course, only deal with these problems that come before them at the instance of a party, or by a government agency. The courts do not have the authority or the resources to police the hundreds and hundreds of orders that are made every year. Unless someone makes an application, we do not even know when an order has not been obeyed.
It should be noted that every disobedience of a court order will not constitute a contempt of court. If the order is for the payment of a money judgment, such as an order for child or spousal maintenance, it is not a contempt of court to fail to make a payment unless it is proven that the failure was deliberate and that the person in question had the funds to make the payment. It is, of course, different if the failure is deliberate and the courts deal quite strictly with such matters. Generally speaking, however, the collection of monies is often best left to government agencies such as those which confiscate the payment of tax returns, insurance monies, or the cancellation of driver’s licenses and other measures which are far more effective remedies than anything the courts can do.
Perhaps it will be fair to say that the courts cannot solve all the social problems that exist in society. Many seem to expect the courts to ensure perfect compliance with the law, and a fair resolution to every dispute. We strive for that result in the cases we hear, but many, many individual social problems do not come before us, and no one would want busy-body courts with roving commissions, as in a police state, to seek out problems that may or may not require the court’s attention.
Bias in the court room
Response No. 10; February 28, 2000 - "Bias in the court room"
An inquiry has been received, entitled as above, from a "father" who complains he has access to his children yet "Medical or school records etc. is denied me"
This is an inquiry to which I cannot furnish a responsive answer because I or some other judge or judges may sometime have to adjudicate upon this matter and we must remain uncommitted until we actually hear the case in court. I can say that judges do not make orders of this kind without there being some reason to do so. The inquiry message does not furnish any information on which anyone would be able to make a specific response even if it were possible to do so.
I can say further, that the only "bias" that exists in the court room in these matters, if it can be called that, is the statutory and common law requirement that the well-being of children always has first priority. In such matters the judge has to assess, on the basis of the evidence, what is best for the child. There may well be reasons why a parent would be denied access to this kind of information. If a parent is dissatisfied with any part of a judge’s order the law provides an appeal to an appropriate court which may be to the Supreme Court in appeals from some orders made in the Provincial Court, or to the Court of Appeal from orders made in either of the trial courts. Alternatively, parents often apply to the judge who made the original order, upon showing changed circumstances, to have the order reconsidered.
My experience is that things are seldom as they first appear, and an unusual or even apparently unfair result in legal proceedings often becomes quite understandable once all the facts are known. To return to the question of why this father was denied access to school and medical records, I of course have no way of knowing the answer. I expect there was a reason thought sufficient by the judge (or Master of the Court) who made the order.