JOHN MAJOR
Mr. Justice John Major stood out during the federal election campaign as the sole dissenter in the court's pre-election decision to lift an Alberta judge's injunction against a portion of the Canada Elections Act which limited third-party spending on election advertising. Judge Major felt the injunction, applied for by Stephen Harper, president of the National Citizens' Coalition and former Reform party MP, should stay in place during the election campaign while the court decided whether to hear a constitutional challenge to the law at a future time.
"We must tread carefully in limiting political speech," Judge Major wrote, in a dissent twice as long as the majority opinion. "It is speech that we recognize as invaluable, given its significance in our democratic process. We should be loath to interfere with it, especially in the midst of a federal election."
A native Ontarian educated in Montreal who spent most of his legal career in Alberta, Judge Major co-authored the court's major minority languages decision last year. Upholding the right of a small group of francophones in P.E.I. to have their own French-language primary school, judges Major and Bastarache, writing on behalf of a unanimous court, overturned a decision by the provincial education minister to bus students an hour away and ordered that the province educate them in their own language in their own community.
The former Calgary lawyer and Alberta appeal court judge also authored the unanimous judgment in the Alberta School Boards decision, which upheld the constitutionality of a 1994 Alberta government funding scheme for public schools. School boards must obey whatever funding scheme the province decides because they "do not enjoy reasonable autonomy from provincial control," he wrote.
Judge Major clarified an area of municipal jurisdiction again in the City of Nanaimo and Rascal Trucking decision in which he said judges should exercise deference in reviewing decisions of elected municipal councils, in this case a decision to declare an enormous pile of dirt a nuisance.
He wrote the dissent in the case of Frederick Brooks, which would have overturned a first-degree conviction after a jury was not warned of the problems with the testimony of jailhouse informants.
While he has been supportive of many progressive equality claims, Judge Major's voting pattern includes support for the preservation of traditional marriage and has twice dissented in cases in favour of some recognition of the responsibilities of women toward their unborn children.
He dissented in the case of Miron v. Trudel that couples who live together should have the same legal obligations as those who marry. However, he concurred in the decision in the 1999 case of M v. H that extended rights and obligations of common-law couples to same-sex couples, but looked at it from an economic point of view.
"By leaving potentially dependent individuals without a means of obtaining support from their former partners, [the Ontario spousal benefits law] burdens the public purse with their care," he wrote in a separate opinion.
MICHEL BASTARACHE
Mr. Justice Michel Bastarache told an interviewer earlier this month that he is "more conservative" than the majority of the court over the past few years when it comes to questions of criminal law.
His voting record bears out those comments. In two majority decisions he authored in criminal law, Charlebois and Brooks, Judge Bastarache denied giving the accused a new trial despite procedural irregularities, for example. He also joined the dissent that would have denied a new murder trial to Robert Dennis Starr.
Judge Bastarache authored the 5-4 decision that found the rights of Robin Blencoe, a former B.C. Cabinet minister accused of sexual harassment, were not violated by several years' delay by the B.C. Human Rights Tribunal in hearing his case.
"There is no constitutional right outside the criminal context to be 'tried' within a reasonable time," he wrote.
On the other hand, Judge Bastarache gave solid support to a major equality challenge last year.
The bilingual former dean of the University of Moncton law school and a former director-general of Promotion of Official Languages for the federal government, co-authored with Judge Major the unanimous decision requiring the government of P.E.I. to provide a French language school to a small group of francophone students in the town of Summerside, rather than requiring the students to make a one-hour commute to an existing school.
Because he had acted as a lawyer for minority language rights advocates in the past, he was asked to recuse himself from hearing the case concerning French-language schools in P.E.I. But Judge Bastarache decided that his past work did not disqualify him from hearing the case.
"True impartiality does not require that the judge not have sympathies or opinions; it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind," he explained.
He also wrote the strongly worded dissent in the Pacific National case that warned the majority's decision to deny compensation to a real estate developer whose lands were rezoned would allow municipalities to break contracts "with impunity." |
