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December 19, 2000

Oh, aren't judges wonderful

Canadian Bar Association 'agitprop'

Ian Hunter
National Post

My local video store classifies its product by subject -- comedy, drama, classics, etc. Lacking a "propaganda" section, it is difficult to suggest just where they should put a video produced by the Judge's Forum of the Canadian Bar Association. The video is entitled: Judicial Independence -- What It Means To You. If I had only heard of this, and not seen it, I would have doubted its existence; I would have treated reports of its existence like sightings of Bigfoot or the Loch Ness Monster.

But having now seen this exercise in agitprop, hosted by Judge David Arnot and starring former Chief Justice of Canada, Antonio Lamer, I can no longer doubt its existence; it confirms just how sensitive, indeed paranoid, some of the judicial establishment have become about public criticism.

The message of the video is how wonderful judges are, how wrongheaded their critics are (Madame Justice Cecilia Johnstone, of the Alberta Court of Queen's Bench, considers public criticism of judges "a quite horrific" phenomenon), and how, if only we all could relax and learn to enjoy being governed by our judges, all would be well. Now this message may play well in the nation's public schools and in the nation's law schools, but I doubt it will convince most Canadians who, somewhere deep down, retain a vestigial notion that we are supposed to govern ourselves or, if not, that we should at least elect those who govern us.

The video's opening frame depicts the Toronto skyline under grey skies, and then a student, sounding like a budding young Jean Chrétien, pipes up: "Why should I care about judicial independence. Canada is a great country. We're free here." Cut to the Supreme Court of Canada building in Ottawa, where a worried looking Antonio Lamer ruminatively opines: "Judicial independence is a prerequisite to justice ... [I]t is not for the judges, it is for the public's protection."

Judge Arnot then walks us through the five basic lessons that we are to learn, summing up at the end of each lesson in case any slow learner (sorry, learning-challenged viewer) has missed the point. For example: "What we have learned here is that judicial independence is an insurance for trust, impartiality, and fairness."

The video features brief comments from judges, lawyers and law professors, but not a single judge (e.g. Mr. Justice Muldoon of the Federal Court of Canada) or a single lawyer (e.g. Ed Greenspan), or a single law professor (e.g. Robert Martin), who has publicly expressed any reservations about judicial overreaching. The CBA has apparently learned its sense of balance from the CBC.

One non-lawyer makes a cameo appearance and he is identified as "His Excellency, John Ralston Saul, Philosopher/Author" and His Excellency, brow furrowed, delivers himself of the conclusion that Canada has largely avoided political violence because of an "ability to keep justice close to the concept of law." Who knows what that means, but it must make for lively conversations over dinner at Rideau Hall.

Should judges be elected? "No," we are sternly told, "the worst of all possible scenarios is elected judges." Actually, I can think of a few worse scenarios, one of them being having participated in the making of this smarmy video.

Mercifully, like all things, it comes to an end, 20 minutes that seem a foretaste of eternity. Former Chief Justice Lamer's parting shot is to tell us that judges are like hockey referees: "If there is no respect for the referee, even where you think the referee is wrong, then the game is over."

Of course, the reason hockey referees are generally respected is because (as the old Smith Barney TV ad used to say) "they earrrn it." The makers of this video do not seem to realize that, mirabile dictu, for most of Canada's history, judges were even more highly respected than hockey referees. Why? Because they saw their role as interpreting and applying, not making, the law. To the extent that public respect has been eroded, it is largely the judges' own doing. When judges are impartial, unbiased arbiters of the law, respect is earned. When judges read down, read out, amend and rewrite the law to suit their ideological conception of the good society, they forfeit respect.

Ian Hunter is professor emeritus in the Faculty of Law at the University of Western Ontario.

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