National Post

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Wednesday, April 26, 2000

How refreshing, if justice were served
Ian Hunter
National Post

Madam Justice Rosalie Abella has been subjected to what seems to me unfair criticism in legal circles over what has been seen in the past as a campaign to get herself appointed to the Supreme Court of Canada. Her campaign is too overt, too political, her critics charge. But since the Supreme Court has itself become political, why should judges not campaign for appointment to its ranks? Why should Canadians not know where on the political spectrum a prospective appointee stands?

Judge Abella has not hesitated to let it be known where she stands; look left, way left, as the friendly giant might have said, left of what's left of the NDP, and there you will find her, championing the downtrodden and impoverished on a judge's salary three times the national average.

At Osgoode Hall Law School in Toronto, hardly noted as a hotbed of the reactionary right, Judge Abella recently delivered a speech attacking what she called the "new inhibitors." I know this sounds like some new plaque-fighting tooth gel, but what she meant were critics of judicial activism. It turns out that those of us who think courts should stick to deciding not making law, who want issues of public policy determined by elected legislators rather than by unelected judges, are really enemies of democracy. Whilst we seem to be criticizing activist judges, our real target, said Judge Abella, is "the way the Charter [is] transforming their traditional expectations and entitlements." Worse, we draw adverse attention to "special interest groups seeking to jump the queue," and we call reverse discrimination "reverse discrimination." Worst of all, we "appear to congregate at one end of the ideological spectrum," and that is not at her end.

Well, mea culpa.

I shall not wait for the re-education camps to be opened but confess right here and now that the changes to Canadian society wrought by the Charter and our activist judiciary seem to me largely deleterious. I do not like to see queue jumping by special interest groups. Affirmative action is, plain and simple, reverse discrimination. So, guilty as charged, M'Lady.

Apart from our respective places on the political spectrum, there is another big difference between us: I do not have the power of the court of appeal to put my agenda into place.

I regret that Judge Abella thinks the court's critics have "claimed a monopoly on truth, frequently used invectives to assert it, then accused their detractors of personalizing the debate"; perhaps we can yet learn habits of temperate speech.

Judge Abella said:

"The judiciary has a different relationship with the public. It is accountable less to the public's opinions and more to the public interest. It discharges that accountability by being principled, independent and impartial. Of all the public institutions responsible for delivering justice, the judiciary is the only one for whom justice is the exclusive mandate. This means that while legislatures respond of necessity to the urgings of the public, however we define it, judges, on the other hand, serve only justice. As Lillian Hellman once said: 'I will not cut my conscience to fit this year's fashions.' "

How refreshing if this description were true, if our courts were, as once I believe that they were, "principled, independent and impartial"; if "justice" was their only mandate and master.

Alas, (pace Abella J.) the truth is otherwise. Don't take my word for it -- this is what former chief justice Antonio Lamer said: "There is no doubt that [with the adoption of the Charter] the judiciary was drawn into the political arena to a degree unknown prior to 1982." Speaking on the 10th anniversary of the Charter, Mr. Lamer described it as having effected "a revolution" comparable to the discovery of penicillin and the invention of the laser.

Now to show that there are no hard feelings, and if it would not be considered presumptuous, I should like to offer one tiny bit of advice to Judge Abella: If I were you, I would refrain from quoting Lillian Hellman as an authority on matters of truth and conscience. It was of Lillian Hellman that Mary McCarthy famously said that everything she wrote was a lie, including 'a' and 'the.'

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

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