Wednesday, June 24, 2015

Stephen Harper quietly appoints another anti-gay academic to the Ontario Court of Appeal

Stephen Harper's latest anti-gay judicial appointment
Just in time for Toronto's Pride, we learn today whose side Stephen Harper's still cheering for when it comes to gay marriage, an issue long settled by the vast majority of Canadians.  

Last week, Harper's government quietly promoted Justice Bradley Miller (pictured), a former University of Western Ontario law professor, to the Ontario Court of Appeal after he spent just six months on the province’s Superior Court (a position he also got from Harper).  During that time, he has written no published rulings by which to appraise his abilities as a judge, according to a Globe and Mail search of the legal websites CanLII and Quicklaw.

Miller and two other Appeal Court appointments by Harper share opposition to same sex marriage.  Specifically, both Miller and Justice Grant Huscroft share a belief in what they call "originalism," a view associated with conservative judges Antonin Scalia and Clarence Thomas of the U.S. Supreme Court, which says constitutions should be interpreted according to how their founders intended.

Both Justice Miller and Justice Huscroft have made the originalist argument in their published work that the 1982 Charter of Rights and Freedoms did not explicitly protect gays and lesbians from discrimination, and that therefore the Supreme Court of Canada was wrong to have read such protection into the document. When he was in opposition, Prime Minister Stephen Harper made that same argument. The Supreme Court has expressly rejected such use of originalism in favour of the “living tree” view – that the law changes with the times.

Kudos to the Globe's justice writer Sean Fine for today's article.

I'm not a lawyer nor a legal scholar.  But I always interpreted Section 15 of the Charter of Rights and Freedoms as explicitly banning discrimination against gays based on how it was originally written:

"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..."

It's impossible to understand how, "Every individual" could not include individuals who are queer.

It's true that Charter line is followed by, "and, in particular, without discrimination based on race, national or ethnic origin, colour, religion, sex, age or mental or physical disability."

But that list is not an exclusive list, if you're using the English language to read it.  It would seem that Miller and his ilk are taking big academic leaps of legalistic logic to make their arguments. 

In 1982, gays were roundly hated by mainstream Canadians.  They were deeply homophobic times.  The notion that protecting gays from discrimination would be enshrined in the constitution was a non-starter in most parts of Canada.  Only Quebec at that time had explicitly banned anti-gay discrimination.  

Hence, our need for protection from discrimination was obvious.  To argue that the Charter should not do so simply exposes a willful prejudice.   Thankfully, the Supreme Court has rightfully understood the Charter to protect gays from discrimination.

When most constitutions were written, such as in the U.S., women were not considered equal to men.  Blacks were slaves.  The list of indecencies and prejudices in law were overwhelming.  To stick to the doctrine of "originalism" would've meant discrimination would still be rampant throughout Canada and the U.S.  It would've condemned millions to lives of second class citizenship in law for an even longer period of time.

The notion of "originalism" is just a misguided attempt by conservatives to maintain discrimination they love.  Miller, Huscroft and clearly Stephen Harper hold some dangerously regressive views when it comes to human equality.

The fact these judicial appointments are happening unannounced speaks again to Harper's secretive governing style.  This is how Stephen Harper operates: by stealth, under the radar, quietly promoting his conservative agenda through appointments and passing laws in omnibus bills or elsewhere he never ran on but continues to implement with as little scrutiny as possible. 

Harper doesn't have the guts to tell Canadians truthfully what he's doing.  You can bet Harper will not be commenting publicly on these appointments unless forced to.

It reinforces the argument yet again that Harper is a very bad fit for Canada and needs to be removed as soon as possible. 

1 comment:

The Mound of Sound said...

I did a case before an appellate panel of three judges, one of whom was a blatantly unsuited political appointment. When the arguments concluded the two legitimate judges swiveled their chairs to confer between themselves before turning back to deliver their judgment, following which they turned to their colleague to ask if he had anything to add. It was judicial ostracism delivered right on the bench and this guy wound up back teaching at his university's business faculty in a matter of months.