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Miller promotion to appeal court ‘not a good sign’: Lawyer

Thursday, July 02, 2015 @ 8:00 PM | By Geoff Kirbyson

It’s pure coincidence that Justice Bradley Miller, a noted critic of gay marriage, was named to the Court of Appeal for Ontario last week, just three days before the U.S. legalized same-sex unions across all 50 states.

But that doesn’t mean questions can’t be raised about the third like-minded judge to be appointed to Ontario’s highest court by the federal Conservatives in the last seven months.

His opposition to gay marriage “isn’t a good sign” for rights advocates, said Elliott Willschick, a Toronto-based criminal lawyer. But Willschick is more concerned with Justice Miller’s dedication to “originalism,” a doctrine associated with conservative judges Antonin Scalia and Clarence Thomas of the U.S. Supreme Court which holds that constitutions should be interpreted in the way their founders intended.

“If he’s going to adhere to the view that the law should be strictly read and interpreted, that would be a huge concern because the courts have moved away from that,” Willschick said. “It helps for the law to evolve as society evolves. Different things come up over time. It would have been impossible in 1867 (when Canada was formed) or 1982 (when the Charter of Rights and Freedoms was signed) to have truly contemplated everything that would come up. Judges should be free to make decisions that are progressive, advance the law and advance rights.”

Justice Miller, a former law professor at the University of Western Ontario, was promoted after spending just six months on Ontario’s Superior Court and writing no published rulings by which his abilities as a judge could be evaluated, Willschick said.

While at Western, he wrote an essay in which he described gay marriage in Canada as a “new orthodoxy” and said that those who disagreed were considered bigots. He also said the only defence parents have to a public school system that contained positive references to gay marriage is to pull their children out.

“It has been argued that if same-sex marriage is institutionalized, new marital categories may be accepted, like polygamy,” he wrote in a 2012 essay. “Once one abandons a conjugal conception of marriage, and replaces it with a conception of marriage that has adult companionship as its focus, there is no principled basis for resisting the extension of marriage licenses to polygamist and polyamorist unions.”

Brian Radnoff, a Toronto-based commercial litigator and appellate lawyer at Lerners LLP, believes the critics are all bluster and Justice Miller’s personal beliefs should be a non-issue.

“You don’t appoint judges because of their personal beliefs on issues. They’re not supposed to let personal beliefs affect the way they decide cases,” he said. “You have to have faith and confidence that a judge will decide things based on the case, the evidence and the law, not personal feelings.”

Radnoff is quick to point out that he worked with Justice Miller at Lerners for about three years in the early 2000s but that they hold different views on gay marriage.

Radnoff doesn’t believe there will be a growing schism on constitutional matters between the originalists and those who believe in the “living tree” argument which holds that the law changes with the times.

“The case law about this living tree argument is from the Supreme Court of Canada. The only court that can change that is the Supreme Court of Canada and the Ontario Court of Appeal is bound by that law,” he said.

Radnoff doesn’t believe Justice Miller’s appointment is a rebuke of Canada’s gay community, either, although he said he might feel differently if he was a member of the community himself.

“I know Brad Miller and I know what type of person he is. Although we disagree on this issue, that doesn’t mean he’s prejudiced or that he’s a bigot,” he said.

With gay marriage having been approved in Canada a decade ago, he believes the majority of Canadians are in favour of it.

“Some people aren’t but if you want to live in this country, that’s what we have. You can’t go to many more Western countries that haven’t legalized gay marriage. It’s another example of where Canada is leading the U.S. on social issues,” he said.

Willschick wouldn’t go so far as to say Justice Miller’s appointment is a shot at the gay community, either.

“I think it’s definitely a concern in the way the (federal) government looks like it wants the court to rule by populating it with more conservative judges who will follow the originalist approach,” he said.

He’s also concerned about the possibility that Justice Miller could be on the fast track to the Supreme Court of Canada.

“It’s a little curious how he’s advancing so quickly after not (distinguishing) himself on the Superior Court and when he was only an academic before. If he does make it to the Supreme Court, he’ll be one of nine judges so I’m not sure how much damage he can do. But how many judges might be appointed who adhere to his way of thinking?” he said.

Willschick allows that judging Miller’s abilities based solely on his views on gay marriage is “a little unfair.”

“Judges can change their views once they are appointed. I hope with him being an academic that he has a lot of knowledge and experience to draw on when making his judicial decisions and interpretations,” he said.