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Illiberal Justice

Low Limitation and<br>Narrow Circumstance

Beryl P. Wajsman

13 March 2005

“Rigorous law is often rigorous injustice.”

~Publius Terentius, Citizen of Rome


Two issues raised in our judicial landscape this past week should be cause for concern to Canadians. The first was the announcement by the federal government that we will soon see the tabling in Parliament of broad legislation expanding it’s ability to seize and forfeit a “criminal’s” property. The second was the signing on by two legal scholars to the crusade of several Liberal Ministers to have the Supreme Court more culturally representative by adding aboriginal justices.


Lord Acton once wrote that when the first Earl of Masefield, William Murray, exclaimed “Fiat justitita, ruat coelum--let justice be done though the heavens fall” he was calling for a legal system grounded in the equity of just consideration for all without regard to privilege, preference or particularity. Acton called this the only definition of justice that really counts. And the only kind of justice that can hold the tenuous balance between the power of the state and the rights of the individual.

The problem with the proposed forfeiture legislation is that it underscores once again that the real threat to the commonweal comes less from criminals, many of whom are deemed so by laws that make victimless activities criminal, than from legislators and regulators who persist in expanding the growth of state prerogatives that permit the slow undoing of basic liberties.


This legislation proposes to reverse the burden of proof and put the onus on defendants to demonstrate how they obtained their property. It has even been suggested that study be given to allow the seizure of assets prior to conviction. These notions compromise the foundational principles of our legal traditions and revert us toward some of the worst aspects of continental European codes. They continue the twenty year erosion of the individual civil protections which formed the heart of the Charter revolution.


The idea of appointments to the Supreme Court based on balancing acts of race, ethnicity or culture of collectivities rather than objective assessments of the intelligence, integrity and accomplishment of individuals is just as damaging to the commonweal. Proponents of this Canadian version of discredited affirmative action initiatives argue that this is just a logical extension of the current rule that three judges always be from Quebec. Their argument is nothing but sophomoric sophistry.


The three Quebec judge rule is a necessity because of the simple reality that Canada’s legal system is based on Civil and Common law traditions and we need judges on the highest court in the land who understand both. It is not an attempt to reflect bloodlines of descent. Great justices like Frank Iaccobucci and Morris Fish were not put on the court because they were Italian and Jewish but because they were great jurists.


The argument that the aboriginal legal traditions form a third Canadian reality is also without any merit and reveals the ignorance of aboriginal history by its proponents. There are many aboriginal legal traditions depending on which part of the country we are looking at. First Nations actually organized themselves as nations before the European conquests, and as such had very separate and identifiable systems of societal regulation. If we wanted to represent every one of them we would have judicial anarchy.


Today’s overactive lawmakers and judges intrude into our lives in unparalleled and unprecedented manners. And they do so for the worse not for better. They have created a citizenry that lives in fearful timidity of the intolerance of statist bureaucracy. This has led to a national culture forfeiting a robust battleground of competitive ideas to the parched prejudices of social orthodoxies. A culture that has led Canadians into impotent acceptance of open abuse of public power.


The heart of the matter is whether in a representative democracy the restriction and reversion of rights can be reconciled with a state’s primordial obligation of protecting, and expanding, the amount of liberty and dignity which all individual citizens have a right to expect. With so many  laws so badly drawn. With others intentionally vague meant to do nothing more than act as fodder for election ads, the people are at the mercy of elected officials who are always relieved to let the courts sort matters out as long as they can get some publicity.


Canadians have been inundated for too long by legal assaults masquerading as liberalism but that are in reality nothing more than the imposition of constructs and constraints of social engineering driven by the proponents of politically correct popular myths. Collectivist social experimentation at the expense of historic individual civil liberties.


These two proposals constitute nothing but pandering to the most retrograde elements of the revanchiste right, and to the most intrusive, nanny-state social engineers of the left in a feeble and transparent attempt to keep a minority government alive.  Duty and honour lie wounded in their wake.


If we are to bend to petty particularities instead of celebrating our common universalities, we will prove Thomas D’Arcy McGee right  when he warned in 1865 that, “There is room in this Northern Dominion-under one flag and one set of laws-- for one great people. There is no chance for greatness-under that same flag and under those same laws—if we succumb to the low limitation and narrow circumstance of a thousand squabbling interests.”





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