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Mr. Justice David Brown.

On September 18, the Harper government outraged liberals and socialists by appointing a Catholic, Mr. Justice David M. Brown, to the Ontario Superior Court of Justice. Most of his critics are concerned that Brown is not just a nominal Christian, but a devout Catholic who upholds the basic principles of Judeo-Christian morality.

No one has impugned Brown's competence in the law. Within the legal profession, he is universally recognized as a leading expert in energy law, constitutional law and Charter litigation.

Carolyn Egan, a spokesperson for the so-called Abortion Rights Coalition of Canada, has expressed concern that, as a Catholic, Brown shares the views of the many pro-life and pro-family organizations he has represented in court. She said: "I think people should be aware of the views he has and how they could potentially impact on future decisions."

Brown discussed his convictions in a brilliant and illuminating address to an ecumenical gathering of law students from across Canada that was held under the auspices of the Christian Legal Fellowship at the University of Western Ontario on February 25. (The full text of his address has been posted on line at: http://www.christianlegalfellowship.org/Articles /LawStudent-RememberYourDignity!-DavidBrown[1].pdf.)

Brown began with a quotation from a sermon by Pope St. Leo the Great (440-461): "Christian, remember your dignity, and now that you share in God's own nature, do not return by sin to your former base condition. Bear in mind who is your head and of whose body you are a member. Do not forget that you have been rescued from the power of darkness and brought into the light of God's kingdom."

Brown observed that the Supreme Court of Canada has adopted a contrasting concept of human dignity. In Law v. Canada, 1999 SCC, the Court unanimously ordained that for the purpose of analyzing the equality rights guaranteed in section 15 of the Charter, human dignity "is concerned with the realization of personal autonomy and self-determination."

Brown told the law students that they must decide for themselves: "Does dignity derive from the relationship between man and God, or does dignity derive from the autonomy of the individual without reference to the transcendent? Does dignity reflect a freedom motivated by responsibility, or activity without constraint?"

In last December's ruling in Labaye, the Supreme Court of Canada underlined some of the implications of its understanding of human dignity, by quashing the law on indecency in the Criminal Code and endorsing a concept of personal autonomy so unconstrained by reason and morality as to sanction orgies of group sex in a nightclub.

As a judge, can Brown be expected to try to change the laws of Canada to conform with the Catholic conception of human dignity? Not at all.

Catholic judges, like all judges, are obligated to respect the separation of legislative and judicial powers. Thomas Aquinas affirmed this doctrine in his dissertation on the law in the Summa Theologiae, when he held that in interpreting the law, judges should "follow the intention of the lawgiver."

Aquinas likewise insisted that in the event of a conflict between a statutory order and a fundamental principle of the natural law, a judge is bound by the divinely ordained law of nature to refuse to pass judgment on the unjust legislative order. According to Aquinas, a judge has no authority under any circumstance to legislate.

Judicial activists disagree. Just as they arbitrarily proceeded in Labaye to overturn the law on indecency so they presumed in R. v. Morgentaler, 1988 SCC, to strike down the few remaining restrictions on abortion that the Trudeau Liberals had left in the Criminal Code.

A principled judge like Brown will not change the law. He will leave legislating to the legislators, while striving to uphold the law as he finds it in judicial precedents, statute laws and the Constitution as originally understood.

That's why so many liberals, socialists, homosexual lobbyists, abortion activists and others are upset by Brown's appointment to the bench. They understand that he cannot be counted upon to help impose their radical left ideology on the Canadian people.

Brown is eminently well qualified to serve on the Ontario Superior Court of Justice. Would that Canada had more lawyers, judges and faithful Christians like him.

Rory Leishman is the author of the newly-released book Against Judicial Activism: The Decline of Freedom and Democracy in Canada (McGill/Queens University Press, Montreal). He has also been published in Judicial Activism: A threat to democracy and religion (2004), which is available from Life Ethics Information Centre, (416) 204-9601, www.lifethics.com.
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Title Annotation:Ontario Supreme Court appoints David M. Brown
Author:Leishman, Rory
Publication:Catholic Insight
Geographic Code:1CONT
Date:Nov 1, 2006
Words:760
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