By Stephen Gray
Judges Daffy, Wacky and Weird are comfortably ensconced in the Bar of the Judicial Club. They are seated in deep plushy leather chairs, discussing judicial decisions handed down from the Benches of Judicial Wisdom, and other judicial scuttlebutt, over a few large drinks.
Judge Weird: I see we have two new lady judges appointed to the Court of the Supremes.
Judge Daffy: Yes, I think it’s wonderful, gives it a bit more gender balance
Judge Weird: Gender balance is fine as long as it is equality based. The trouble is, when there are nine judges on the court a true gender balance is impossible.
Judge Wacky: Why is that?
Judge Weird: Didn’t you ever take mathematics at school Wacky? The figure of nine does not half evenly into gender equality. There will always be one gender with more of their sex on the bench and it will not be equal. I’m afraid that one of these days the odd judges out, if they are of the same-sex, will claim discrimination under the Equality section of the Charter.
Judge Wacky: Good point Weird. Then the politicians would have to import a judge from another country to hear it. Because we could be in conflict of interest. We cannot judge ourselves. Equality is the key to everything and we must be seen to be practicing it.
Judge Daffy: I agree. In fact, one of the new equality lady judges brought down an excellent landmark decision on equality.
Judge Weird: Fill me in on it.
Judge Daffy: She reduced the age of buggery to 14 years of age for homosexual youth.
Judge Wacky: Was there a problem about equality being left behind?
Judge Daffy: Yes. It seems gay youth did not have this right, so she said it was “discriminatory.”
Judge Weird: Good for her. Don’t these silly buggers realize we cannot have discrimination under the Charter.
Judge Wacky: Sounds like a Bum decision to me.
Judge Daffy: Don’t be crude Wacky! This was a Landmark decision.
Judge Wacky: You know I dream of bringing down a Landmark decision myself. I have been reading lots of books to find an appropriate phrase or analogy to use when I get the opportunity to bring down a Landmark.
Judge Weird: Well I hope you find one, because everybody these days is using the “living tree” analogy and quite frankly it is becoming dead wood. Hey I made a pun.
Judge Daffy: I know what my analogy is going to be for my next big decision.
Judge Wacky: Tell us, we promise not to use it before you do.
Judge Daffy: You promise you won’t steal my analogy?
Judge Weird: We promise. Who do you think we are, criminals? We are judges for goodness sake. We don’t steal. We are the law.
Judge Daffy: Okay. My analogy is as follows: The Charter is a garden, we plant flowers in it and we throw out weeds. The garden is continually growing and we fertilize it. For instance, if I was ruling on say “marriage” or whatever, I would say the Pansies are in bloom in the Charter garden and under the Charter we are all Pansies. So therefore marriage is for Pansies growing under the “living tree.”
Judge Weird: Great stuff Daffy. A flowery decision, that has a nice smell to it. You know this is a good analogy and it can be added to. One could say the Charter is environmentally sound because it is nurtured and fertilized from the judicial mind and constantly brings forth flowers of wisdom. Though it being an equality document we must bring in other flowers as well.
Judge Wacky: Hey, I like your analogy. Flowers are nicer in the Charter garden than that silly banality called a “living tree.” Still the tree is there now so it will have to stay but now it has a garden and flowers for company.
Judge Daffy: So do you guys think I’m making sense?
Judge Weird: Don’t ask stupid questions, Daffy. Of course you are. When did sense have anyplace on the Bench anyway? There is only one problem though, if you get to make a Landmark decision in the Charter garden. The politicians could use the not-withstanding clause to overrule all your hard and intelligent spade work.
Judge Wacky: Don’t be daft Weird. The politicians are too chicken to use that clause.
Anyway all the lawyers, all the intellectual elites and most of the media have created an imaginary respectability around the Charter and any politician trying to use the clause would be vilified and called despicable names. And rightly so. Plus the fact they would be interfering with the independence of the judiciary. The Charter is an untouchable document. It is whatever we say it is. A living tree in a judicial garden that brings forth flowers of wisdom from the minds of the judicial gardeners.
Then all three judges lifted their glasses and said: “ Let us drink to the Charter.”
Then they left the Judicial Bar fortified with liquid knowledge. Soon they would arrive at their courts to hear some cases, each eagerly hoping to use the new analogy and bring down a landmark decision that could make manure smell like perfume.
Stephen Gray
Dec. 29, 2004.
graysinfo@yahoo.ca Website: http://www.oocities.org/graysinfo