Toronto Sun

Sunday, April 4, 1999

Judgment goes both ways

By DOUGLAS FISHER
Sun Ottawa Bureau

At least four of our nine justices of the Supreme Court of Canada have now been into the public domain. There have been assurances the court welcomes critical analysis of its decisions but warnings that a recent surge of "judge-bashing" and "personal attacks" on specific judges for specific decisions is most unfair and should cease.

Perhaps the most obvious examples of such "bashing" have come in reaction to:

a) The decision written by Supreme Court Chief Justice Antonio Lamer in the Delgamuukow case (December, 1997) that is having such costly economic consequences in the so-called Nisga'a land treaty in British Columbia;

b) The recent, libertarian sort of decision from the B.C. supreme court which seems to sustain child pornography;

c) The Supreme Court ruling that struck down Alberta judge John McClung's decision on a sexual assault case and drew a savage, open critique from him of one Supreme Court Justice, Claire L'Heureux-Dube, for belittling his competence in what she attached to the decision.

A few months before the literally juvenile decision by Chief Justice Lamer was issued on the case of the B.C. Indian tribe, he had gone public with a general rebuke of those in the chorus demanding more severe sentences and tougher laws for violent crimes. He referred to this chorus scornfully as a "jihad" or holy war.

Not a politician to my knowledge stepped forth to say this intervention by Lamer contradicted the commonplace sanction in Canada against judges engaging in partisan politics. Clearly, the chief justice put himself into what has been a recurring debate in Parliament itself. (See recent Hansards on the bitter House of Commons debates over a Liberal MP's bid to end concurrent sentences for violent crimes.)

After appraising this lordly wigging of so-called "law and order" nuts by the chief justice I had to doubt his judgmental abilities. And after I read his Delgamuukow decision one had to figure anything so vapid and calamitous in future costs came from either a stupid or an inattentive man.

Last week, in publicly talking about judicial review and the developing resistance to it, Supreme Court Justice Frank Iacobucci said:

"Judicial review is viewed by some as incompatible with representative democracy in that it permits control by an unrepresentative minority."

His point is familiar, emphasizing that since 1982 when the Charter of Rights become a fundamental of our Constitution the Supreme Court has had to function as "constitutional police" even going beyond striking down a law to ordering a government to change a law.

Of course, Iacobucci said, as have the other justices in warning critics away, that the Supreme Court does not take its decisions lightly, nor does it mean the justices believe they have supremacy over constitutional interpretation. He also argued that judges should never defend their judgments "and speak only through their judgments."

Justice Beverley McLachlin of the top court was also speaking off the bench last week to law students. She welcomed open debate about the court's decisions and insisted the court had not been hijacked by a feminist agenda. One of her platitudes was: "Judges don't have to park their common sense at the courthouse door."

Wow! That tempts me to say she should look around her workplace.

Of course, Madam Justice McLachlin did declare her strong support for freedom of expression, cautioning, however, that public debate that becomes very personal "doesn't further the public interest a lot."

On the other hand she believes judges should venture forth from the bench to talk about their work and the many serious aspects of the justice system as a whole in which the courts are less fundamental than the programs to deal with matters like drug abuse, mental illness, battered women, etc.

But surely that demands the question to her: isn't this advocating intervention by judges and their associated social rank and judicial aura into the contentions of politicians and interest groups?

Early last month two former premiers of good repute, Peter Lougheed of Alberta and Allan Blakeney of Saskatchewan, joined forces and issued their sober apprehension over the growth of judicial power since the Charter of Rights came into effect.

Included in their statement was advocacy for using the obvious and legitimate counter to judicial expansiveness; that is, Parliament and the provincial legislatures using the "notwithstanding" clause in the Constitution through which court judgments based on the Charter can be set aside for up to five years. They regret that such usage has come to be seen, particularly by so many law teachers, as contradicting both the integrity of the Charter and an alleged cherishing of it by the people.

Lougheed attributes much of the hostile reaction in English Canada to the notwithstanding clause to its use in 1987 by Robert Bourassa's Liberal government and the Quebec National Assembly to evade the Supreme Court's veto of the province's language laws.

It is too chancy to predict the way ahead for the present judicial oversight of legislation, given the growing criticism of it, and the now obvious tensions among the judges themselves about it.

There seems to me to be a spreading realization among elected politicians that what they have done as legislators is being more and more confounded by judges who, with the Charter at their backs, have been shifting from interpreting the laws to shaping them to fit what they consider to be modern, moral, and socially responsible.

Meantime, one of our many think-tanks might consider an annual, running estimate of the economic consequences of all court decisions based on the Charter, or even only the rising cost, now into billions, from just one of the decisions written by Bertha Wilson, the first female justice of the Supreme Court (now retired). That decision saddled Canada with a sieve-like, lawyer-infested immigration and refugee system.

As for criticizing judges openly, even brutally, they must face the parallels in their roles now to those of party leaders and hockey coaches. Colloquially-speaking, if they can't stand the heat, get out of the kitchen.

Or to use the Biblical aphorism at hand, let Chief Justice Antonio Lamer and his crew ponder both singly and collectively: "Judge not, that ye be not judged." (Matthew:7,1)

Copyright© 1999, Canoe Limited Partnership.