National Post

Friday, February 26, 1999


National Post

Judging judges

Now that Mr. Justice Duncan Shaw has made that unpopular child-porn decision, the majority, represented by Professor Ian Hunter (Democracy and its Discontents, Feb. 23), wants to stop the game and take its ball home. Incredibly, Professor Hunter feels we should ditch the Charter of Rights and Freedoms altogether and allow the elected politicians to once more reign supreme over us.

First, he says, "the claim to individual liberty may often mask harm to the collectivity." George Orwell himself could not have expressed so well the instincts of authoritarianism. Who will speak for this "collectivity"? Why, the state, of course.

Second, Prof. Hunter feels the presence of the Charter has stifled mature political debate because many are using the courts to "demand their rights" rather then petitioning Parliament to grant them. Why shouldn't those who feel their rights have been abused have recourse to the courts? Is it not enough for Prof. Hunter that, because of the high cost involved, the poor are barred from access to our courts?

Prof. Hunter's third reason for rejecting the Charter is that it cannot discern "an appropriate balance between freedom and restraint, between liberty and licence, between indulgence and self-discipline" because "that must come from within, not from without, from the heart and mind and soul." Stirring words to be sure, but if all that is true, why bother with laws or courts at all?

The point of having a Charter is to provide a check, a counterpoint, against politicians who, to gain the approval of the majority, might otherwise ride roughshod over the rights of minorities.

Thank God for courageous and honourable judges such as Mr. Justice Duncan Shaw -- and thank God for the Charter.

Alan Randell, Victoria.

Your editorial mentions that Chief Justice Antonio Lamer has been complaining about "judge bashing" (Judging Judges, Feb. 23). Apart from the recent pornography decision that has caused so much outrage, Justice Lamer's own court has done much to bring about the public discontent of which he complains.

One of the things that most dismays the public is his court's frequent rejection of evidence of serious crimes on the basis that the police happened to have made a technical, procedural mistake, or that a right under the Charter has been infringed.

Few people want to give the police carte blanche, but the policy of treating an error of procedure or the infringement of a Charter right as a requirement for acquittal has demoralized the police, has damaged the public by exposing them to immediate risk of a repetition of the crime, and has brought the justice system into ever-increasing disrepute.

If a criminal's rights have been infringed, it would be far more sensible for the criminal to be required -- if he has complaint -- to pursue an action against the police for civil damages, the amount to be determined by a jury.

H.M.Thornton, Victoria.

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