Tuesday, April 18, 2006

Liberals back the war on terror

The London Free Press
By Rory Leishman

Speaking the Commons last week, Liberal defence critic Ujjal Dosanjh noted that Canadians are divided over Canada’s mission to Afghanistan. “They are clearly divided right down the middle,” he said. “They are looking for leadership from this chamber and from the minister, from the Prime Minister, and from all of us.”

An irresponsible opposition would try to exploit this division by reflexively opposing the government. The Liberals, to their credit, have resisted the temptation. Under the leadership of former defence minister Bill Graham, they maintain that the Canadian Armed Forces are making a vital contribution to Canada’s national security by combating the Taliban terrorists in Afghanistan.

Thus, Dosanjh lauded the brave Canadian soldiers who have been killed or grievously wounded in combat in recent weeks. He said: “Mothers and fathers, sisters and brothers, have received the awful news that they dread most. Canadians have looked to us, their elected representatives, for reassurance that the mission is worth the loss.”

Dosanj gave that assurance. Standing by the decision of the previous Liberal government to initiate a stepped-up combat role for our Armed Forces in Afghanistan, he avowed: “We believed then and we believe now that destroying root and branch the agents and infrastructure of supply and training that made Afghanistan into a safe haven for international terrorism is in Canada's vital national interest.”

“Moreover,” Dosanjh added, “we believe that stabilizing, reconstructing and democratizing failing or failed states such as Afghanistan is the primary organizing principle for Canada's future foreign military operations.”

For the Liberals, that’s quite a turnaround. Under the feckless leadership of Jean Chretien, the Liberal government of Canada refused to support the United States-led coalition that is dedicated to reconstructing, stabilizing and democratizing the failed state of Iraq.

As for the New Democrats, they remain stuck in a puerile anti-American mode. They have yet to grasp that Canada has a vital role to play in the war against Islamist terrorism.

In last week’s debate, New Democrat leader Jack Layton reiterated the outdated NDP party line that “Canada’s role in the world and our reputation around the world rests on our reputation as a peacekeeping nation.” He charged the United States Bush administration with pursuing a foreign policy based upon fear engendered by the September 11 attack. That attack that killed nearly 3,000 people, including 24 Canadians. Layton admonished: “Canada must not succumb to the indulgence of fear over hope.”

In response, Defence Minister Gordon O’Connor asked Layton point blank if he “basically supports our effort in Afghanistan or not.” Layton did not provide a straight answer. He resorted instead to a cheap, diversionary debating trick, accusing O’Connor of implying that people who question the Afghan mission are deficient in “support for our service personnel who are risking their lives.”

Like Layton, New Democrat defence critic Dawn Black also stopped just short of explicitly repudiating Canada’s Afghan mission. Nonetheless, she tipped her hand by asking: “How does one build peace and diplomacy on the one hand when one is in a war fighting, or in counter-insurgency mode? We know that many of the people in the peace movement in Canada and ordinary Canadians share these concerns.”

Black should have paid closer attention to the earlier speech by Dosanjh. He recalled that in committing an army task force of about 1,000 personnel to the terrorist-infected Kandahar region of southern Afghanistan, he and his liberal colleagues in the previous government were aware that they were conferring no easy task on the Canadian armed forces. Dosanjh said: “We knew the enemy was determined and that casualties were a virtual certainty.”

He added: “We also knew that the mission marked a shift from the traditional Canadian role of peacekeeping. However, traditional peacekeeping in the post-cold war and the post-9/11 world has changed to include humanitarian, security and reconstruction dimensions. Reconstruction,” he emphasized, “is not possible without security.”

Dosanjh did not indulge in fear over hope. He told the plain truth – a truth so obvious that even a New Democrat should be able to grasp it: There can be no hope of building peace in the Middle East, or safeguarding Canadians at home, until the Islamist terrorists in Afghanistan and elsewhere are defeated and destroyed.

Tuesday, April 04, 2006

The season of lent

The London Free Press
By Rory Leishman

For Christians, this is the season of Lent, a 40-day period of fasting, repentance and prayer in preparation for the culminating event of the Christian year – the celebration of Christ’s victory over sin and death at Easter.

Some people feel small need for repentance. They think they deserve at least a passing grade on the Ten Commandments, because they rarely swear, usually relax on Sundays, always honour their father and mother, and have never killed anyone, stolen anything, committed adultery, lied under oath or coveted their neighbour’s wife or belongings.

However, as Jesus explained in the Sermon on the Mount, the Ten Commandments are only a summary of the moral law. The full requirements are far more demanding. The divine law forbids not only the act, but also the very thought of adultery. It requires us to love not only our friends, but also our enemies. It summons us to bless them that curse us, do good to them that hate us and pray for them which despitefully use us and persecute us.

Altogether, the Bible contains more than 600 moral rules. Some, such as the prohibition in Deuteronomy 22:11 against clothing with mixed wool and linen fabrics, are obsolete. Few faithful Christians would have any compunction about wearing a woolen suit with a linen lining.

That puzzles Merle Hertzler, an on-line village agnostic. He asks: “If the Bible is your source of guidance, why do you simply ignore this rule, and live as though it doesn't exist? This rule is not reasonable, is it? Why would God care if we wore two kinds of fabric together? If you and I let reason override this rule, then it seems to me that reason, not the Bible, is our ultimate guide.”

Hertzler has got it wrong. For theologically orthodox Christians, Catholic and Protestant, Holy Scripture is the ultimate authority on all questions of faith and morality. Reason is the means for discerning revealed Biblical truth.

There is no conflict between right reason and Christian faith. In the eloquent words of Pope John Paul the Great: “Faith and reason are like two wings on which the human spirit rises to the contemplation of truth.”

Many Canadians, including most of the judges on our courts of appeal, rely on reason alone as a guide for moral judgment. Inevitably, they fall into grievous error. Who would have thought even a few years ago that a majority of our secular rulers on the Supreme Court of Canada would have found, as they did in a ruling in December, that there is nothing unlawful or degrading about several men engaging in group sex with a woman in a place open to the public?

In striving to understand the truths of the Bible, theologically orthodox Catholics and Protestants do not rely entirely on their own unaided reason. They look also for instruction to the reason and faith embodied in the traditions of their respective churches. While these traditions vary on some key points of doctrine, they essentially concur on the substance of the moral law.

Thus, both Protestants and Catholics hold that while the New Testament rendered the ceremonial laws of the Hebrew Bible obsolete, the moral law summarized in the Ten Commandments is universally binding and true. Protestants and Catholics who uphold the traditional teaching of their churches also concur on the meaning of these commandments.

Consider, “Thou shalt not commit adultery.” The 1647 Westminster Shorter Catechism teaches that this commandment “forbiddeth all unchaste thoughts, words and actions.” Likewise, the contemporary Catechism of the Catholic Church affirms: “Every baptized person is called to lead a chaste life, each according to his particular state of life.”

What man in our pornography-saturated culture can go for long without an unchaste thought? Who can truly claim to have always loved his neighbor as himself?

All have sinned and fallen short of the divine perfection. No one can be self righteous. No one is entitled to pass judgment on another person. But no one need despair.

“The sting of death is sin, and the power of sin is the law,” declared St. Paul. “But thanks be to God, who gives us the victory through our Lord Jesus Christ.”

Saturday, April 01, 2006

Promising appointment to the Supreme Court

The Interim
April 2006
By Rory Leishman

Judging from the reputation of Mr. Justice Marshall Rothstein and the answers he gave to the questions put to him in the unprecedented public hearing that preceded his appointment to the Supreme Court of Canada, he should make an excellent addition to the country’s top court.
Asked by Conservative MP Diane Ablonczy to state his views on the proper role of judges in a democracy, Rothstein responded: “They should apply the law. They shouldn't depart from the law. They shouldn't be inventing their own laws. They should use common sense and they should use discretion. Those are all aspects of judicial temperament that I think are appropriate."
Quite so, but is that the temperament of most of Rothstein’s colleagues in the appellate courts of Canada? Definitely not. Led by judicial activists on the Supreme Court of Canada, they have chosen time and again over the past 20 years not to apply established laws, but to invent and impose new laws of their own devising.
If Rothstein means what he plainly says, he could not support the arbitrary 2003 ruling of the Ontario Court of Appeal in Halpern that imposed same-sex marriage on Canadians. Neither could he endorse the no-less-arbitrary and unanimous ruling of the Supreme Court of Canada in the Reference re Same-Sex Marriage, 2004 SCC, which upheld the constitutional validity of same-sex marriage. Rather, as a restrained judge, he would be bound to uphold the traditional definition of marriage as entrenched in section 91(26) of the Constitution of Canada Act, 1867; namely, the voluntary union for life of one man and one woman to the exclusion of all others.
Prior to enactment of the Canadian Charter of Rights and Freedoms in 1982, the great majority of judges on the Supreme Court of Canada habitually exercised judicial restraint. Instead of changing the law through interpretation, they undertook to uphold the laws and the Constitution as originally enacted and understood.
The Court should have taken this same approach to interpretation of the Charter. As it is, with no support in either the language or the history of the Charter, Chief Justice Beverley McLachlin and other judicial activists on the Court have invoked the Charter as a pretext for amending or striking down all laws that, in their opinion, violate so-called Charter values.
Rothstein rejects this presumptuous approach to Charter interpretation. He told the review committee that in assessing the compatibility of a statute law with the Charter, judges should remember that "the statute they're dealing with was passed by a democratically elected legislature (and) that it's unlikely that the legislature intended to violate the Charter. Therefore they have to approach the matter with some restraint."
Over the past 20 years, the Supreme Court of Canada has shown no such restraint. In one egregious instance – M. v. H., 1999 SCC – the Court compelled Parliament and the provincial legislatures to amend literally hundreds of family-law statutes so that partners in a same-sex relationship have essentially the same legal benefits and obligations as spouses in a traditional marriage.
In support of this ruling, the Court cited the alleged equality rights of homosexuals in section 15 of the Charter. Yet there is no mention of homosexuals in section 15 or any other provision of the Charter. And as judicial activists well know, the omission was deliberate. During deliberations on the Charter in an all-party committee of Parliament, an amendment to specify equality rights for homosexuals in section 15 was repudiated by a vote of 22 to two.
Rothstein has vowed that not to legislate from the bench, but to do his best to uphold the law and the Constitution. Can he be taken at his word?
Justice Minister Vic Toews thinks so. As a former law student of Rothstein’s at the University of Manitoba, Toews knows the new justice well. Following the hearing of the judicial appointments’ review committee, Toews said: “I’m confident that Justice Rothstein will make an excellent addition to the Supreme Court of Canada.”
The rest of us can only hope and pray that Toews is right, and that Rothstein will have a firm resolve to denounce the lawless usurpation of legislative powers by the majority of his Supreme Court colleagues.

Supreme Court Abolishes the Law on Indecency

Catholic Insight
April 2006
By Rory Leishman

With the unprecedented, seven-to-two ruling in R. v. Labaye on December 21, 2005, the Supreme Court of Canada took judicial activism to a new extreme, by legalizing group sex in a public place. The Court had no authority in law, precedent or the Constitution for this illegitimate exercise of raw judicial power.
The appellant in this case, Jean-Paul Labaye, operated L’Orage, a club in Montreal where perverts met each other for group sex. Citing police reports, the trial judge gave several examples of sexual behaviour in the club such as the shameless conduct of a naked woman and four naked men who performed various sex acts on each other, while other men watched and masturbated.
Police duly charged Labaye with violating section 210(1) of the Criminal Code, which provides: “Every one who keeps a common bawdy-house is guilty of an indictable offence and liable to imprisonment for a term not exceeding two years.” In section 197(1), the Code states:
"common bawdy-house" means a place that is
(a) kept or occupied, or
(b) resorted to by one or more persons
for the purpose of prostitution or the practice of acts of indecency.
The trial judge found Labaye guilty as charged and the Quebec Court of Appeal upheld the conviction only to have the Supreme Court of Canada arbitrarily acquit the club operator. Chief Justice Beverley McLachlin held in her reasons for Canada’s top court that the sexual antics which took place in L’Orage did not constitute “acts of indecency” within the meaning of the Criminal Code.
How could she have arrived at such a manifestly preposterous conclusion? Judges, like the rest of us, are supposed to uphold the plain language of the law as originally enacted and understood. Sir William Blackstone underlined this cardinal rule of interpretation in his magisterial Commentaries on the Laws of England. The words of a statute, he wrote, “are generally to be understood in their usual and most known signification; not so much regarding the propriety of grammar, as their general and popular use.” Elmer Driedger, a Canadian authority on the interpretation of statutes, expressed essentially the same view in his text The Construction of Statutes. He wrote: "Today there is only one principle or approach, namely, the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of Parliament.”
Chief Justice Antonio Lamer of the Supreme Court of Canada followed the orthodox approach to statutory interpretation in Reference re ss. 193 and 195.1(1)(c) of the Criminal Code (Man.), 1999 SCC, a case that also dealt with the ban in the Criminal Code on the practice of acts of indecency in a common bawdy house. He stated: “The appropriate test to apply in this area is the ‘community standard of tolerance’ similar to the test used in obscenity cases which this and other courts have interpreted and applied without insurmountable difficulty.” In taking this stance, Lamer not only upheld the plain meaning of the law as originally understood, but also followed another cardinal principle of judicial interpretation -- the rule of precedent known as stare decisis. As defined in the authoritative Black’s Law Dictionary, this rule requires that, “when [a] court has once lain down a principle of law as applicable to a certain state of facts, it will adhere to that principle, and apply it to all future cases, where facts are substantially the same.” This rule is not absolute. Judges are not bound to follow an illegitimate precedent like the ruling of the Supreme Court of Canada in R. v. Morgentaler, 1988, which eliminated restrictions on abortion in the Criminal Code, because this ruling had no basis in common law, statute law, the Canadian Charter of Rights and Freedoms or the Constitution of Canada.
In contrast, Mr. Justice Wilfred Judson of the Supreme Court of Canada set a valid precedent in Brodie v. The Queen, 1962 SCC, by advancing “the community standard of tolerance” as the test for obscenity. This ruling was well calculated to uphold the original understanding of the plain meaning of the law on obscenity in s. 163(8) of the Criminal Code which states: “any publication a dominant characteristic of which is the undue exploitation of sex, or of sex and any one or more of the following subjects, namely, crime, horror, cruelty and violence, shall be deemed to be obscene.” Judson emphasized that in applying this law, a trial judge should not rely upon his own sensitivities, but seek to uphold the contemporary standards of the community on what constitutes undue exploitation of sex.
In Towne Cinema Theatres Ltd. v. The Queen, 1985 SCC, Chief Justice Brian Dickson likewise stated that in dealing with obscenity, a judge should be mindful that “the task is to determine in an objective way what is tolerable in accordance with the contemporary standards of the Canadian community, and not merely to project one's own personal ideas of what is tolerable.” However, Dickson went on to hold that the community standard of tolerance is not the only criterion for determining if material is obscene. He added: “There are other ways in which exploitation of sex might be ‘undue.’ Ours is not a perfect society and it is unfortunate but true that the community may tolerate publications that cause harm to members of society and therefore to society as a whole.”
Dickson took the view that it was up to virtuous judges like himself to protect the public from harmful obscenities that most Canadians might tolerate. He wrote: “Even if certain sex related materials were found to be within the standard of tolerance of the community, it would still be necessary to ensure that they were not ‘undue’ in some other sense, for example in the sense that they portray persons in a degrading manner as objects of violence, cruelty, or other forms of dehumanizing treatment.”
Dickson had no warrant for this modification of Judson’s community standard of tolerance test for obscenity. Neither in Towne Cinema Theatres nor in any other case has the Supreme Court of Canada found an instance where most Canadians have tolerated sex-related materials that cause harm to members of society by portraying persons in a degrading manner.
In R. v. Butler, 1992 SCC, Mr. Justice John Sopinka proceeded to change the law on obscenity once more, by conflating Dickson’s two-fold test of tolerance and harm into one test based essentially on harm. Sopinka wrote:
The courts must determine as best they can what the community would tolerate others being exposed to on the basis of the degree of harm that may flow from such exposure. Harm in this context means that it predisposes persons to act in an anti-social manner as, for example, the physical or mental mistreatment of women by men, or, what is perhaps debatable, the reverse. Anti-social conduct for this purpose is conduct which society formally recognizes as incompatible with its proper functioning. The stronger the inference of a risk of harm the lesser the likelihood of tolerance.
Sopinka had no justification in law or precedent for devising this harm-based approach to obscenity. With the backing of likeminded colleagues on the Supreme Court of Canada, he arbitrarily changed the law through interpretation. In so doing, The Court gave pornographers free rein to publish any filth that exceeds the Canadian community standard of tolerance provided only that the material is not so extreme as to predispose persons to act in an anti-social manner that is incompatible with the proper functioning of Canadian society.
In R. v. Labaye, Chief Justice McLachlin has outdone even Sopinka in changing the law on indecency, by eliminating the community standard of tolerance as a test altogether. Instead, she ordained:
Indecent criminal conduct will be established where the Crown proves beyond a reasonable doubt the following two requirements:
1. That, by its nature, the conduct at issue causes harm or presents a significant risk of harm to individuals or society in a way that undermines or threatens to undermine a value reflected in and thus formally endorsed through the Constitution or similar fundamental laws by, for example:
(a) confronting members of the public with conduct that significantly interferes with their autonomy and liberty; or
b) predisposing others to anti-social behaviour; or
c) physically or psychologically harming persons involved in the conduct, and
2. That the harm or risk of harm is of a degree that is incompatible with the proper functioning of society.
Having promulgated this new test for indecency, McLachlin applied it to the facts of the Labaye case. First, she found that the orgies in the L’Orage club did not constrict the autonomy and liberty of members of the public, because the club’s doorman admitted only fee-paying members and their guests who were willing spectators or participants in group sex.
Second, she held that the orgies did not predispose others to anti-social behaviour. She wrote: “No one was pressured to have sex, paid for sex, or treated as a mere sexual object for the gratification of others.” Is that so? Four men performed various sexual acts on one woman while other men looked on and masturbated, yet McLachlin and the jaded majority of her colleagues pretend that these men did not treat this all-too-willing woman as a mere sexual object for their perverted gratification.
“Finally,” she wrote, “there is no evidence of the third type of harm -- physical or psychological harm to persons participating.” What about the obviously grave risks of contracting AIDS and other incurable diseases through group sex? McLachlin dismissed the “possible danger” of catching a sexually transmitted disease through group sex on the peculiar ground that “it is conceptually and causally unrelated to indecency.”
In summation, McLachlin wrote: “I conclude that the evidence provides no basis for concluding that the sexual conduct at issue harmed individuals or society.” Having found that Labaye had not violated this first part of her new test for indecent criminal conduct, McLachlin had no need to address the second part of her test. Regardless, she gratuitously observed: “There appears to be no evidence that the degree of alleged harm rose to the level of incompatibility with the proper functioning of society. Consensual conduct behind code-locked doors can hardly be supposed to jeopardize a society as vigorous and tolerant as Canadian society.”
By such reasoning, McLachlin held that Labaye should be acquitted. In coming to the opposite conclusion, Mr. Justice Andre Rochon of the Quebec Court of Appeal wrote: “What seems to emerge plainly from the community consensus is that Canadians do not tolerate orgies.” McLachlin rejected the argument on the ground that “this reasoning erroneously harks back to the community standard of tolerance test, which has been replaced, as discussed, by the harm-based test developed in Butler.
In a stinging dissent to the judgment of the Supreme Court of Canada in Labaye, Justices Michel Bastarache and Louis LeBel pointed out that the new approach to indecency imposed by the Court is “neither desirable nor workable,” and “constitutes an unwarranted break with the most important principles of our past decisions regarding indecency.” Bastarache and LeBel explained:
Our colleagues’ approach replaces the community standard of tolerance with a test that treats harm as the basis of indecency rather than as a criterion for determining the community’s level of tolerance. Whether or not serious social harm is sustained has never been the determinative test for indecency, and it cannot take the place of a contextual analysis of the Canadian community standard of tolerance without completely transforming the concept of indecency and rendering it meaningless.
Bastarache and LeBel are surely right. With the ruling in Labaye, the Supreme Court of Canada has annulled the law on indecency in the Criminal Code. As a result, commercial clubs for group sex are now free to proliferate their degrading orgies across Canada.
Who knows what law the Supreme Court of Canada will change or eliminate next? The ban on polygamy in the Criminal Code is an obvious candidate. Having legalized consensual group sex between several men and a woman in a public nightclub, the unprincipled judicial activists on our top court are all too likely to find that a man or woman has a right to indulge in marital relations with several spouses in the privacy of their home.
Prime Minister Stephen Harper and his Conservative cabinet colleagues have vowed to revive parliamentary democracy and the rule of law in Canada. To fulfil this promise, they must somehow curb the arbitrary rule of our robed dictators on the Supreme Court of Canada. Sooner rather than later, these rogue judges should be made to understand that Canadians are no longer willing to put up with arrogant and immoral judicial activists who think they have a God-given right to usurp the legislative powers of elected representatives of the people in Parliament and the provincial legislatures.