An egregious abuse of judicial power

The London Free Press
By Rory Leishman

In a classic 18th-century text, The Spirit of the Laws, Charles de Secondat, Baron de Montesquieu, pointed out that the separation of legislative and judicial powers is essential to freedom under law. He wrote: “Were (the judicial power) joined with the legislative, the life and liberty of the subject would be exposed to arbitrary control; for the judge would then be the legislator.”

Sir William Blackstone likewise warned in his magisterial Commentaries on the Laws of England (1765-69): “Were (the judicial power) joined with the legislative, the life, liberty, and property of the subject would be in the hands of arbitrary judges, whose decisions would be then regulated only by their own opinions, and not by any fundamental principles of law; which, though legislators may depart from, yet judges are bound to observe.”

Until recently, the great majority of Canadian judges agreed with Montesquieu and Blackstone. Instead of arbitrarily changing the law to conform with their ideas of what justice requires, they undertook to uphold the plain text of the laws and the Constitution of Canada as enacted and originally understood by elected representatives of the people in the legislative branch of government.

Judicial activists know no such restraint. They have no compunction about arbitrarily enacting their ideological preferences into law by unilaterally amending statute laws and the Constitution through judicial interpretation.

Consider in this respect the recent decision of the Ontario Court of Appeal in A.A. v B.B.. At issue in this case, were two lesbian partners – A.A. and C.C. – and a man – B.B. – who had donated sperm so C.C. could give birth to a child.

According to court records, A.A. and C.C. began living together in 1990. By late 1999, A.A. had completed her law degree and C.C. had become a university professor, so they decided to start a family. They agreed that C.C. would be the birth mother and that their mutual friend, B.B., a university professor with three children, would be the father.

The child of this union, D.D., refers to both A.A. and C.C. as “momma.” B.B. visits D.D. twice a week. The trial judge relates: “On Tuesdays, he has time with the child independently of A.A. and C.C. On Thursdays, he joins them for a family dinner together which sometimes also involves his other children and the woman with whom he cohabits.”

The birth mother, C.C., and the father, B.B., are the child’s legal parents. With the support of C.C. and B.B., A.A. petitioned the court for recognition as a third legal parent.

In a ruling on April 11, 2003, the trial judge, Mr. Justice David R. Aston of the Ontario Superior Court of Justice, expressed sympathy for A.A.’s request. Having noted that she is fully committed to a parental role for D.D., he said he was prepared to declare that she is a legal parent of the child “if there is jurisdiction to do so.”

As it is, the Ontario Children’s Law Reform Act plainly states that a child can have only two legal parents, either natural or adoptive. That settled the matter for Aston.

In his judgment, he wrote: “If a child can have three parents, why not four or six or a dozen? What about all the adults in a commune or a religious organization or sect?”

He added: “Polarized views exist concerning the definition of the modern family. Court decisions may sometimes necessarily impact on that debate, particularly where Charter considerations are engaged. However, when it comes to creating or shaping social policy, political considerations belong to the legislature.”

A.A. appealed the ruling. In a unanimous judgment on January 2, a three-judge panel of the Ontario Court of Appeal including Chief Justice Roy McMurtry conceded: “It is apparent that the (Children’s Law Reform) Act contemplates only one mother and one father.”

However, unlike Aston, McMurtry and his colleagues did not abide by the law: Instead, they presumed to change it to conform with their belief that it would be in the best interests of children like D.D. to have three legal parents.

Do any of our elected representatives in the Ontario legislature object to this gross judicial violation of the separation of legislative and judicial powers under the Constitution of Canada? Apparently not.