Monday, September 13, 2004

Rosalie Abella: A Radical Supreme Court Choice

Sun, September 12, 2004
The judge who wrote in red ink
By Douglas Fisher

In late August, one main-line news item shook me up as I was holidaying in the bush far from home and unable to find out more about it.
This was Paul Martin's appointment of two lower court judges, Rosalie Abella and Louise Charron, to the Supreme Court of Canada.
Previously, as reported on Aug. 16, Martin had "vowed to keep politics off the Supreme Court, saying he won't consider the political views of candidates for the country's highest court."
He was responding, said the story, to Chief Justice Beverley McLachlin's recent demand that the choices be "based solely on merit, independently of any and all political or ideological considerations."
Martin's assurance pleased me because in the media's list of possible choices were several I thought public dangers, including Rosalie Abella.
Well! To put it mildly, the two women whom the PM shortly appointed have past court records which indicate the influence on them of "political or ideological considerations," particularly Judge Abella.
In my view, she is as radical and as costly as the much-noted previous "lefty" on the Supreme Court, the now-retired Bertha Wilson.
Lawyers' chit-chat
In lawyers' chit-chat, I've heard Wilson referred to as "Billionaire Bertha" -- a tag earned by the high-cost consequences to taxpayers of her decisions, particularly her ground-busting one that any refugee claimant who reached Canadian soil was covered by the rights in the new Constitution's Charter of Rights and Freedoms. From this decision issued the expensive, overloaded refugee review board, such a bonanza to immigration lawyers and its cast of capital "L" liberally minded members of the board.
As a devotee of frugal government, I was bowled over by the news that Abella had been elevated into our top court.
She's already cost taxpayers for the three levels of government -- municipal, provincial, and federal -- huge amounts of money, stemming from both her court decisions on human rights cases and the recommendations which she had made as a solo commissioner on the issue of employment equity, so dear to feminists and so expensive to governments.
Further, Abella, who's lobbied for the highest court for at least a decade, has been franker than any other judge in Canada on the lawmaking opened for the court through use of the powers the Charter has given it to resolve dicey social and welfare issues which politicians as legislators so often won't tackle or have stalled while doing so.
In years around politics one comes to know a lot of lawyers and a much smaller swatch of judges.
It's always intrigued me that the topic of judicial appointments takes up a lot of their chit-chat about work, the courts, cases and laws.
As example, many (though never for attribution) spoke and argued, sometimes with derision, about Wilson, the first female justice of the Supreme Court of Canada.
Some dismissed her as ignorant of both criminal and corporate law. Some tagged her as an oddity judge from the start, this Scottish socialist who'd come to the court from a Toronto law firm where she'd been its researcher, jumping to renown and not just because she was the first woman on the court.
She made a bundle of rather radical decisions, some of which I believe were most ill-considered, given their costly consequences.
When I raised the prospects this year of Abella's push for the Supreme Court with my lawyer acquaintances, I was told to forget Rosalie, neither Paul Martin nor Irwin Cotler were fools.
They'd know she'd give away Revenue Canada.
Loath to discuss
How wrong they were! And that brings me to one corollary which baffles me. Why is our legal profession so loath to carry on public discussion or debate about the qualities of both past and present judges, and prospective ones?
So much private talk and gossip, but so little public, topical talk by lawyers and ex-judges about appointments made or coming up.
Witness what I encountered when I got home from the bush and did a short phone canvass of several lawyers whom I know well enough to ask: Why was Abella, an ideological zealot of the romantic, spendthrift left, chosen by the PM and his justice minister, Irwin Cotler?
The answer was to liberalize the court, for example on gay and lesbian rights -- see same-sex marriages.
Martin, I was told, sees himself as modern, even a visionary, so he was excited to set in place a judge for the highest court who's been a jewel in the roster of the Ontario Court of Appeal since 1992.