On Sept. 18, Justice Minister Vic Toews provoked a national controversy by appointing a devout Catholic to the Ontario Superior Court of Justice. No one has questioned the outstanding legal competence of the judge in question, Mr. Justice David M. Brown. The sole concern of his critics seems to be that he might twist the law to conform with the principles of Judeo-Christian morality. There is no basis for this apprehension. As both a legal scholar and student of Catholic theology, Brown knows that judges have no authority to change the law.
Sir William Blackstone explained in his authoritative Commentaries on the Laws of England that judges in all common law countries are obligated to uphold the will of Parliament. He said: “The fairest and most rational method to interpret the will of the legislator is by exploring his intentions at the time when the law was made.” Thomas Aquinas took the same view. In the Summa Theologiae, he plainly stated that in interpreting a statute law, judges must “follow the intention of the lawgiver.”
Granted, Blackstone and Aquinas also held that judges, like all Christians, owe their ultimate loyalty to God. Brown fully agrees. In an address earlier this year to a national conference of Christian law students at the University of Western Ontario, he commended the example set by Sir Thomas More in upholding his duty to God above all others.
More was the Lord Chancellor of England who resigned his post rather than acknowledge King Henry VIII as head of the church. For this offence, More was condemned to be executed on Tower Hill. Upon mounting the scaffold, he proclaimed: “I die the king’s good servant, but God’s first.”
Brown told the students: “Today, you will feel the pressure of the legal community to reverse that response and to profess, instead, that you may be God’s good servant, but the law’s first. You must resist that pressure,” Brown admonished. “Certainly, be the law’s good servant. But always remember the place of the law in a Christian’s life. As put by our Lord: ‘Render to Caesar the things that are Caesar’s and to God the things that are God’s.’”
In conformity with this teaching, what might Brown have decided if he had taken part in the 1988 Morgentaler ruling, in which a majority of the Supreme Court of Canada struck down the few restrictions on abortion then remaining in the Criminal Code? As a Christian, would Brown have undertaken to uphold the commandment, “Thou shalt not kill,” by calling upon the court to amend the law to ban all abortions?
Surely not. Like all judges, Brown would have been obligated then, as he is now, to uphold statute laws and the Constitution as originally enacted and understood.
The late Mr. Justice William McIntyre was a principled judge. In a dissenting opinion in Morgentaler, he held that the court had no authority to amend or strike down the law on abortion in the Criminal Code. “It is for Parliament to pronounce on and to direct social policy.” McIntyre insisted: “This is not because Parliament can claim all wisdom and knowledge, but simply because Parliament is elected for that purpose in a free democracy.”
As McIntyre suggested, Parliament is not always right. Indeed, given the sorry record of legislative capitulation to the immoral rulings of judicial activists over the past 25 years on such crucial issues as abortion and same-sex “marriage,” it’s all too conceivable that Parliament could enact a statute law that is fundamentally incompatible with the natural law and the divine law ordained by God.
In that event, the duty of a Christian judge is clear: he must refuse to uphold the profoundly unjust statute law. In extremis, he should follow the example set by More in incurring the wrath of the secular authorities by steadfastly refusing to issue a legal ruling that conflicts with the first loyalty that all Christians owe to God.
Brown is a conscientious Christian. He can be counted upon as a judge to uphold democracy and the rule of law. All Canadians, regardless of their religious convictions, should hope that the Harper government will follow up with many similar, inspired appointments to the judiciary.