National Post

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Tuesday, January 11, 2000

Politicians told to appeal if they don't like court decisions
Don't rail against judicial activism, leading judge says
April Lindgren
Southam News



Roy McMurtry

TORONTO - Politicians should appeal court decisions they don't like instead of railing against judicial rulings that reshape government policies, the chief justice of the Ontario Court of Appeal said yesterday.

Where there is concern about a court decision, the role of the attorney-general is to order an appeal "without the necessity of making any personal comment about whether or not he or she agrees with the decision," Roy McMurtry said at a press conference marking the opening of the province's courts for the year.

Judge McMurtry, who also said criticism of the Young Offenders Act by many politicians is "unwarranted," went on to remind elected officials that federal members of Parliament unanimously handed the courts responsibility for interpreting the Constitution and Charter of Rights.

"It troubles me," said the chief justice, who was attorney-general in the cabinet of Ontario's former Tory premier Bill Davis, "that elected politicians would be perhaps unreasonably critical of the role of the courts in interpreting the Charter when the invitation and the responsibility -- and I should emphasize the word responsibility -- was deliberately given to the justice system."

Provincial politicians recently have loudly denounced so-called judicial activism, where court decisions revamp public policy. A recent ruling by the provincial division of Ontario Court that prevents Ontario from restructuring Ottawa's French-language Montfort Hospital particularly irritated the government of Mike Harris, the Premier.

The Harris government was also highly critical of a Supreme Court of Canada ruling requiring amendments to provincial laws to give homosexual couples the same rights as heterosexual common-law couples.

Jim Flaherty, Ontario Attorney- General, took issue with Judge McMurtry's assessment of the Young Offenders Act: "The Young Offenders Act doesn't work, it does not address the issue of violent crime among teenagers," he said, adding that even proposed amendments to the act do not go far enough.

Mr. Flaherty also rejected Judge McMurtry's defence of court decisions that run contrary to the will of governments.

"Those of us who are elected have an obligation to try to make sure that the wishes of the people by whom we are elected are carried out through the legislative process," he said.

Mr. Flaherty also said more needs to be done to speed cases through the court system. He suggested a number of possibilities, including the abolition of preliminary inquiries that are often no longer needed.

Patrick LeSage, chief justice of the Superior Court of Ontario, which hears jury trials in civil and criminal matters, echoed Mr. Flaherty's concern about the speed of the courts.

Several prolonged cases have interfered with the court's ability to deal with other matters, he said.

Judge LeSage pointed to the highly publicized Just Desserts murder case in Toronto as an example of a criminal proceeding that dragged on. The case into the April, 1994, slaying of Georgina (Vivi) Leimonis was just completed last month.

"We have made continued progress, but there is room for improvements in achieving an acceptable, timely disposition for civil and criminal trials," Judge LeSage said.

It still takes an average of nine months for a civil or criminal case to be heard once it arrives at the court. About 3,000 criminal cases and 8,500 civil cases and 1,000 family cases are on the Superior Court trial lists waiting to be heard. That's down from 6,000 criminal cases, 24,000 civil cases and 2,000 family cases five years ago.

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