Toronto Star

November 19, 1999

Judges will judge themselves

By Richard Gwyn - Home and Away
Toronto Star

EVER SINCE OUR Supreme Court judges became part-time politicians, as they have been since the enactment of the Charter of Rights and Freedoms, the great juridical question has been: Quis custodiet custodies?

That is to say: Who will judge these judges? These judges, who constitute the last court of appeal, beyond which there is no appeal - and who are neither elected nor, once appointed, can be disciplined by any institution.

The answer, it turns out, is simple. The judges will judge themselves, when the deed has to be done.

Being judges, they can't admit this. It would devalue the majesty of the law by admitting the possibility of error. Still less can the judges admit the factor that principally prompted them to judge themselves, in the sense of re-examining one of their decisions, was that most unintellectual and uninformed factor of all - public opinion.

This procedure is nowhere provided for in the Constitution, nor can any precedent for it be found in the law books. But, as it turns out, it works. So give the Supreme Court judges credit for inventiveness.

For weeks it has been obvious that the court blundered badly in its September decision to uphold a claim by a Mi'kmaq to possess an inherent right to fish (specifically for eel) without a licence, by virtue of a 250-year-old treaty between his forebears and the British military.

The blunder wasn't in the legal recognition of the native people's right, which was just and proper. It was in the court's manner of expressing it, which gave no one time to adjust to the new and difficult circumstances. The judges, thereby, managed to commit the one unforgiveable act of any governing body - to set two groups of poor people, the commercial fishermen and the natives, against each other.

The judges didn't intend this to happen. But they were responsible, by their infelicitous wording, for the fact that it did happen. They've now corrected their error, without admitting they'd erred, or admitting it's been public anger over the consequences of that decision that has prompted them to do so.

First, two weeks ago, incoming chief justice Beverley McLachlin gave a rare and most unusual press conference, using it to let drop the revealing comment: ``The idea that there is some law out there that has nothing to do with consequences and how it plays out in the real world is an abstract and inaccurate representation of what the law is.''

McLachlin was saying, in effect, that people, judges as much as anyone else, are responsible for the consequences of their actions, even if their intentions are benign.

With great skill, since she was admitting nothing, McLachlin laid the groundwork for this week's judgment by the court on an application by Nova Scotia fishermen for it to reconsider its September ruling.

Most unusually, the judges gave an extended explanation for their decision. They, then, harshly condemned everyone but themselves - the natives for assuming the original ``narrow'' ruling could be extended to unlimited fishing and to entirely new areas, the commercial fishermen for failing to accept they had to find space for natives in the fishery, and the federal government for failing to exercise its right, and responsibility, to regulate the entire fishery in the interests of conservation.

The judges' tone was defensive-aggressive. They covered up a certain guilt they, themselves, undoubtedly felt by lashing out at everyone else. A bit hypocritical. But the majesty of the law must be preserved.

At the same time, the judges used the opportunity to return to being judges of our highest court. They said something of critical importance about not just this issue, but about the entire issue of the conflict between rights and responsibilities that's caused so many difficulties ever since the enactment of the Charter of Rights and Freedoms.

``The ability to exercise rights is necessarily limited by the rights of others,'' said the judges. ``Absolute freedom without any restriction necessarily infers a freedom to live without laws. Such a concept is not acceptable in our society.''

They concluded: ``The government must be able to determine and direct the way in which these rights should interact.'' In other words, it's the role of judges to judge the law and of politicians to make political decisions. Amen.

Richard Gwyn's column appears Wednesday, Friday and Sunday in The Star. He can be reached at

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