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Supreme Court unfair to Harper government, new Ontario justice wrote as professor

A pedestrian walks past the Supreme Court of Canada in Ottawa on Thursday, July 23, 2015.

Sean kilpatrick/THE CANADIAN PRESS

The newest judge on Ontario's top court has an explanation for the Conservative government's well-known losing streak at the Supreme Court of Canada: The court's reasoning process is unfair, making it almost impossible for the federal government to defend its laws, such as those involving assisted suicide, prostitution and the war on drugs.

Read more: Stephen Harper's courts: How the judiciary has been remade

Ontario Court of Appeal Justice Bradley Miller, whose appointment was announced last month, is part of Prime Minister Stephen Harper's vanguard on the bench – a leading dissenter, along with fellow appeal-court Justice Grant Huscroft, from much of what Canada's judges have said and done under the 1982 Charter of Rights and Freedoms.

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As The Globe reported on the weekend, Mr. Harper has been on a decade-long quest to transform the lower courts by finding judges who would be less activist, and less likely to stand in the way of policies such as a crackdown on crime. Justice Miller and Justice Huscroft offer an approach that is more deferential to government than is currently the norm on Canadian courts. If over time they are able to point the court in a new direction, judges will become less likely to strike down laws in which broad moral issues are at stake; government would be given more respect as the authority to decide such issues.

Justice Miller also brings a passionate voice for freedom of religion, arguing that the right to morally disapprove of gay marriage is vital to freedom of conscience. Justice David Brown, appointed to the appeal court last December, makes a similar argument.

But Justice Miller's most important effect on the law could be on the interpretation of the right to life, liberty and security in Section 7 of the Charter of Rights. This was the section used by the Supreme Court to strike down a ban on assisted suicide this year and prostitution laws (2013), and to reject the government's attempt to close Insite, a Vancouver clinic where illegal drug users shoot up in the presence of nurses (2011).

A judicial "blind spot" explains the government's losing streak in those three cases, Justice Miller said in his published work as a law professor. (As a lawyer, he represented the Christian Legal Fellowship in arguing at the British Columbia Supreme Court against physician-assisted suicide.)

Canadian judges have become blind to certain kinds of harm – harm to important principles and harm to culture, he said. They understood such broad social harms in the 1990s, when the Supreme Court allowed criminal laws on hate speech and pornography to stand, he said.

A bit of background on the Charter is necessary to understand Justice Miller's argument that the court's approach to Section 7 is unfair to government.

The Charter's very first section allows government to put "reasonable limits" on rights, if it can show that the limits are justified "in a free and democratic society." But the court has never allowed an infringement of the Section 7 right to life, liberty and security to stand. The reason is to be found in the wording of Section 7: Any limits have to be in accordance with "the principles of fundamental justice." It would be illogical to say a government could violate a principle of fundamental justice in a free and democratic society.

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The result, according to Justice Miller, is a drastically unfair approach.

"The Court remains entirely focused on the rights-holder," such as a sex-trade worker, he wrote in an essay last year published on a British constitutional blog. "Justice and justification are to be considered from one side only. All other considerations are to be postponed to the second stage [Section 1] that never comes."

Thus, he says, it is "profoundly difficult" for the federal government "to articulate the reasoning behind much criminal legislation." Courts do not perceive the harm done by removing the prohibition against intentional killing in the assisted suicide case, he said in a 2012 interview with Cardus, a Christian think tank with offices in Canada and the United States.

He underlined that point in an interview with Western Law Alumni Magazine two years ago, explaining the success of Vancouver lawyer Joseph Arvay, who represented the individuals seeking the right to a doctor's help in ending a life.

"Joe's success – and he does this better than anyone – depends on persuading the court that his client's personal drama is of the utmost significance, and that those persons who will be stripped of the law's protection in order to accommodate Joe's clients just don't matter all that much." (Mr. Arvay said at the time that he tries to show it isn't necessary to trounce his clients' rights to protect the rights of others.)

Carissima Mathen, a law professor at the University of Ottawa, offered another perspective on the courts' approach to life, liberty and security. "Arguments extending beyond the right holder are certainly considered," she said in an e-mail. "They just come up earlier in the process, when thinking about 'fundamental justice,' which is really Section 7's core guarantee."

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She added that in the prostitution, assisted suicide and supervised-injection cases, the law's impact was severe. "If you have horrific suffering or risk of death on one side, you're going to need really strong arguments on the other. And it's probably true that symbolic purposes (such as simply promoting a certain moral vision) are not going to make the cut. But I think that is actually a strength, and not a weakness, of the Charter."

Justice Miller is a proponent of "natural law" – the idea that universal, unchanging moral principles are inherently human, and form the true underpinnings of law. Iain Benson, a lecturer visiting his law school at the University of British Columbia, introduced him to the philosophy and gave him a book by Canadian philosopher George Grant called English-Speaking Justice. (Justice Miller went on to obtain a doctorate in law at Oxford under a leading natural-law philosopher, John Finnis.)

The George Grant book described the contemporary West as having "lost our confidence in speaking about what is good for human beings," Mr. Benson said in an interview from France, where he lives. "He actually refers to it as 'the terrifying darkness that has fallen on contemporary justice.'" Justice Miller, he added, offers "a set of insights that the system desperately needs."

On gay marriage, Justice Miller's main themes come together – that government has the right and duty to protect society from harm to its natural moral principles.

"Natural is code for Catholic values with Brad," in which sex between same-sex individuals is seen as unnatural, or sinful, University of Toronto law and philosophy professor David Dyzenhaus said.

Justice Miller says government is obliged to protect marriage between a man and a woman. "In the same way that government is obligated to steward the political community's forests, fresh water and other resources, it is obligated to identify the morally valuable aspects of a national culture and its morally valuable institutions and to preserve them from one generation to the next," he wrote in a 2011 paper, "Sexual Orientation and the Legal Regulation of Marriage."

"There would seem to be no reason why this obligation to protect a political community's cultural property should not extend to protecting a morally valuable concept and culture of marriage."

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