Judge Arbour con't.
But her support for defendants' rights was not monolithic. In the Biniaris, Molodowic and A.G. trinity of cases, for example, she disappointed defence lawyers by finding that a simple "lurking doubt" in the mind of a judge is not enough to throw out a verdict if it could have been reasonably reached by a jury.
Her concern for due process was reflected especially in cases dealing with the rules officials must follow before interfering with an individual or property.
Judge Arbour wrote a strong dissent, joined by Chief Justice McLachlin, in the case of a mother whose newborn child was taken away by Winnipeg child and family services without a judge's authorization, arguing that the apprehension without emergency grounds was an infringement of the woman's security of the person despite her past difficulties caring for children.
"The principles of fundamental justice have both a substantive and a procedural component," she wrote.
She also joined the minority in the Little Sisters case that would have struck down the Customs Act because it allowed officials to abuse their discretion and unjustly seize materials destined for a gay and lesbian bookstore.
CLAIRE L'HEUREUX-DUBE
The court's longest-serving judge, Madam Justice Claire L'Heureux-Dubé, joined the court in 1987 and earned a reputation for passionate defences of the Charter rights of women and minorities. But the title of "liberal" or "activist" judge cannot be applied broad-brush to Canada's second woman on the top court. Unlike Bertha Wilson, the retired Supreme Court judge who gave across-the-board support for Charter rights, Judge L'Heureux-Dubé is viewed as one of the court's most restrained judges when it comes to granting Charter appeals by criminal defendants.
Her voting pattern reveals an unwavering concern for the vulnerability of victims of crime and of discrimination. A former family court judge, Judge L'Heureux-Dubé has expressed particular concern about children, and the treatment of child witnesses by the justice system. She has defended protections for their privacy and special needs in cases where other judges have privileged a defendant's due process rights.
Her voting record in 2000 reflected several strands of this long-established profile.
Despite being labelled by some as the court's "feminist" judge, she wrote the majority opinion that sanctioned the warrant-less apprehension of a one-day-old child by Winnipeg Child and Family Services from a mother who had neglected other children in the past.
Over the objections of the two other women judges on the court, Judge L'Heureux-Dubé placed the safety of the child above the rights of the mother and defended the right of the province to take preventive action without seeking a judge's authorization. The state, she wrote, "should not always be required to wait until a child has been seriously harmed."
Favouring a substantive over a formal interpretation of equality rights of minority groups, Judge L'Heureux-Dubé authored two unanimous disability discrimination rulings stating that an individual need not suffer from an actual functional limitation to be the victim of unconstitutional discrimination on the basis of disability. There is a "socio-political" dimension to handicap as well as a physical one, she explained in the case of a woman passed over as a municipal horticulturalist because pre-employment X-rays found a spinal deformation that did not affect her daily life.
Despite her otherwise solid support for gay and lesbian equality rights, Judge L'Heureux-Dubé joined the majority in the Little Sisters decision which stopped short of striking down the Customs Act despite finding it did not prevent discrimination at the border against importers of gay erotica. Her vote was consistent with a desire to leave intact protections against violent pornography, which she wrote in the 1992 Butler obscenity case, can "lead to abuse and harm."
Judge L'Heureux-Dubé lived up to her record as one of the court's most frequent dissenters. She broke with the majority in the controversial ruling that granted a retrial to Robert Dennis Starr in the execution-style killing of a Winnipeg gang member, finding that improper jury instructions were not sufficient reason to call for a new trial.
In keeping with her concern for child witnesses, she dissented in a ruling that overturned a conviction of an accused child molester identified as D.D. She found that a child psychologist should have been allowed to testify that a girl's two-year delay in reporting the alleged incidents did not reflect on the truth of her complaint.
Con't. |
