Barrel Strength

There are mornings when you feel the judiciaryneed to be taken out and given a sensitivity course, not in the sensitivity to every whiner group, no, but to an idea of what judges should never tamper with.

A little humility about the extent of their competence, about the extent to which they can never substitute their opinions for those of others. I know it goes against the entire thrust of legal training since the Constitution Act of 1982, but that is the point. Leonard Cohen predicted “there won’t be nothing, nothing you can measure any more” in his song, The Future, and he foretold the truth. What he could not tell was the role of the judiciary in politicizing the length of every yardstick.

I cite two recent examples of judicial overreach: the Quebec judge who overruled the father of a 12 year old, who was grounded, and the Manitoba judge who overuled the medical opinion that a man was brain dead, and in the process caused three physicians to resign from the Grace Hospital.

In the Quebec case, the father had grounded the daughter for disobedience about going on the Internet.

“Madam Justice Suzanne Tessier of the Quebec Superior Court ruled on Friday [June 20th] that denying the girl permission to go on the school trip was an excessive punishment. The girl’s lawyer, Lucie Fortin, said, “She’s becoming a big girl” and described the school trip as “a unique event in her life”, the Globe and Mail reported. In arguing the case, Fortin cited Sections 159 and 604 of the Quebec Civil Code, which allow minors in some circumstances to initiate court proceedings relating to the exercise of parental authority. Section 159 is used in “extreme circumstances”, such as cases of parental negligence.

“The father’s lawyer, Kim Beaudoin said that her client is “stunned by this situation. He feels like he’s lost his daughter”. He is appealing the court’s decision.”

Bravo! Judge Tessier, you are in line for a spanking from the Appeal Court.

On the Manitoba situation, the Post asks the right questions:

“Beyond judges acting with urgency, there is the unresolved question of whether court compulsion of health care workers is just. At the moment, the highest value in medical bioethics is individual autonomy and consequent respect for individual decision-making. That value was brought into doubt when the Manitoba judge questioned the physicians’ medical expertise and, at the same time, required that they continue to exercise it in violation of their professional and personal ethics. Should physicians and other health care professionals be required to choose between hurting a patient by ineffective medical treatment, and a possible jail sentence for being in contempt of court?”

Though I do not hold with a general legalized right of physicians to kill patients, they make decisions which result in the cessation of artificial support for life, nearly every day in some cases. They pull the plugs, and the equipment moves on the next person requiring care. If collectively they do this every day, should we not legalize it? Permit me some moral ambiguity here. Doctors make medical decisions, and medically you are meat, a physical being, not a spiritual one. When that meat is no longer self-sustaining, you have entered the domain of medical decision-making.  They have other people whose lives could be sustained by the attention and equipment they are spending on your parent’s comatose body. Whenever a judge deals with these matters as if it there were a right to be kept alive, they forget the costs imposed on everyone else whose fathers and mothers lie dying for the want of attention going to your parent’s soon-to-be corpse. Life may be sacred, but not to physciansin their medical capacity. They deal in death, and deathis the natural outcome of life. We have no right to the indefinite avoidance of our appointment with our Maker, particularly if that avoidance is medically useless, and a burden on the still-living in need of care.

Judges need to restrict the tendency to extend rights where rights can have no bearing, and state decision-making where the state has no comeptence.

The judiciary reminds me of a scene in Amadeus, where Mozart is infuriated that he has to submit samples of his work to a committee of Italians to get the job of music teacher to the Emperor’s niece.

VON STRACK
Mozart, you are not the only composer in Vienna.

MOZART
No, but I’m the best.

VON STRACK
A little modesty would suit you better.

A judiciary filled, at the very best,  with Salieris, Quantzes, and Telemanns, and many thinking themselves Mozarts, whose judgments are cutting-edge advances of human rights. Spare us!

I would rather be governed by 100 people chosen randomly from the telephone book than by the Canadian judiciary. I mean it. Or by the semi-random group of people assembled in the House of Commons. Hey! Parliamentary supremacy. What a concept!

 And I write this as Mozart’s finale to the Symphony #41, the Jupiter, is playing. I know the difference between talent and pretention, and so do most Canadians.