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Thursday, September 16, 1999

Bench can't take the heat
Ian Hunter
National Post

Supreme Court Justice Claire L'Heureux-Dube delivered a remarkable speech last month at a Canadian Bar Association meeting; the speech was titled: Judicial Independence and Judicial Activism. After paying lip service to the precept that justice is not a cloistered virtue but must withstand public criticism, she went on to castigate the Supreme Court's critics, while expressing her concern that "...the debate over judicial activism might be having an effect on the independence of the judiciary in our country."

For this concern, she produced not a scintilla of evidence; nevertheless, she went on: "intense criticism by the media and some politicians about the place of judges may affect the way some do their jobs." In the absence of evidence, so may sunspots or the tides. Her Ladyship asked: "Why should judges want to become unpopular or be personally attacked? Do they not wish to have successful and respected careers?"

Now most people consider a judicial appointment the culmination of a successful career. It is distressing if judges continue to fret about their popularity or career trajectory, but they are well compensated for their insecurity and they enjoy tenure unrivalled by any other public office-holder in the land.

Judge L'Heureux-Dube quoted approvingly an article in Trial magazine, where one Robert O'Neill asserted: "Attacking judges ... has become an eminently acceptable activity for the political and legal establishment."

I do not know where Mr. O'Neill resides, but not in Canada. Canadian politicians fawn deferentially as the Supreme Court nullifies their legislation (even the western bear, Ralph Klein, retracted his claws, and reneged on a promise to invoke the notwithstanding clause after the Supreme Court's Vriend decision); as for the legal establishment, with a few notable exceptions (Ed Greenspan and Professor Robert Martin come to mind) their sycophancy would make a mediaeval courtier blush. I am willing to wager that Judge L'Heureux-Dube's attack on freedom of speech garnered respectful applause from her Canadian Bar Association audience.

Her Ladyship went on: "I am concerned that public debate is demonstrating an increasing tendency to focus on the 'messenger' rather than the 'message.' Rather than discussing the ideas or values underlying judicial decisions or the legal methodology or reasoning used in reaching them, the debate places the attention on judges themselves ... accusations that judges are overstepping the proper institutional boundaries of their role. The prime example of this criticism of the messenger rather than the message is the accusation that judges have somehow taken it upon themselves to overturn legislation passed by Parliament or to make other changes in the law without respecting the appropriate separation of powers -- the accusation of 'activism'."

With respect, your Ladyship, it is precisely the activist messenger that critics want to unmask. We are not content to knock spots off the frequently elusive methodology or reasoning by which the court has arrived at decisions it had no business making. We want to remind judges of the tripartite division of powers in Canada, and we quaintly believe that the role of the courts is not to make but to apply the law. It is regrettable that judges consider such criticism beyond the pale, but it is not likely to go away.

"When criticism is made without regard for the institutions which are at the heart of our political system, it has begun to go too far," Judge L'Heureux-Dube asserted. Parliament was once at the heart of our political system; thanks to the Charter of Rights and Freedoms, the court now is. What a chilling view of freedom of speech to suggest that it is contemptuous or otherwise improper to point this change out, to criticize it, or to propose alternatives. The Judge concluded her remarks by quoting Mr. Justice Michael Kirby of the Australian High Court:

"Let it be a goal of the coming millennium that we re-teach the lessons of our constitution and engender an informed appreciation of the judges and of their vital importance for the peaceful government of us all. Not blind or uncritical faith. Nor confidence extracted by the ever-present threat of legal enforcement. Not appreciation won by clever public relations and media hype. But a deserved evaluation of faithful and honest service in a difficult profession, the alternative to which is anarchy and the power of guns."

On this point, at least, her Ladyship and I agree.

Ian Hunter is professor emeritus in the faculty of law at the University of Western Ontario.

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