Edmonton Journal

Sunday 5 August 2001, p. A10

Judges should accept criticism: They craft new laws out of thin air to suit their ideological whims

Lorne Gunter
Columnist, The Edmonton Journal

Judges, professors and lawyers who instantly lash out at any criticism of the judiciary make my blood boil. They seem to confuse judicial independence with judicial infallibility. No, no, no they scold, mustn't say judges are wrong or you threaten the impartiality of the courts. Soon Lady Justice will be peeking out from under her blindfold and sneaking her thumb onto one of her scales, and it will be all the fault of you critics.

Frankly, this is a chicken-and-egg conundrum: Which came first, the foray of activist judges into overtly political spheres or the growing willingness of politicians and pundits to slam judges?

I think the judges took the first step, but I don't blame them entirely. Politicians opened the door to judicial activism by entrenching in the Charter the right of courts to review legislation for its constitutionality. This gave judges a greater freedom than they previously had to strike down entire laws, rather than just sections of laws.

Once judges acquired these new powers, many pundits egged the judges on to use them by demanding the courts right wrongs and correct injustices that the commentators believed Parliament and legislatures were slow to tackle. Then politicians funded radical advocacy groups to take cases to court that gave the judges ample opportunity to remodel Canadian law and society. Moreover, politicians have failed to use the constitutional provision they gave themselves to reign in judicial power through use of the notwithstanding clause.

Yet judges happily invented the practice of ``reading in,'' and have enthusiastically employed it to rewrite old laws completely and craft new ones out of thin air to suit their ideological whims.

Furthermore, the judges and their supporters appear incensed by only one type of criticism -- criticism from the right. When lefty commentators and politicians urge the courts to extend their activism, almost no judge or lawyer or academic upbraids those critics for threatening the independence of the judiciary. But let Ralph Klein or Stockwell Day or Mike Harris suggest judges have gone too far, and they are quickly accused of undermining the foundations of our liberal democracy.

We had just such a criticism of Premier Klein in The Journal on Thursday. Admittedly, Klein was on touchy ground when he suggested judges in Calgary have been faking illnesses just to get fancier office space.

In response, Peter Russell, an emeritus professor from Toronto, said: ``If our judiciary become part of politics and are seen simply as another bunch of politicians, we won't have trust in them to adjudicate our rights in a balance and fair way.'' Pardon me, but we passed that point a long time ago, and I fear most of the judges' defenders don't recognize it because the

judges' forays deep behind political and legislative lines seem perfectly sensible, according to their defenders' liberal-left views.

Still, I am not deaf to the argument that excessive criticism of judges can bring the administration of justice, if not into disrepute, then certainly into doubt. And as one of the judges' harshest critics (I still wear with pride the distinction that Madame Justice Claire L'Heureux-Dube once singled me out in a speech for the threat my columns posed to judicial independence.), it is incumbent upon me then to point out good rulings as well as bad.

So searching for something nice to say, let me say this: The Supreme Court of Canada has demonstrated much more sense under its new Chief Justice, Beverley McLachlin than it every showed under Antonio Lamer, her predecessor.

I'm still no SCC booster. The court, for example, recently used dubious UN environmental pronouncements to give municipalities the right to ban pesticides and herbicides on lawns, pointedly overriding science, common sense and property rights. One of its rulings this spring --the one that refused to extradite two suspected murders to the United States until officials there promised not to execute them -- paved the way to Canada becoming a haven for murderers. And, in a similar vein, even though it wasn't asked to do so, it also all but banned the reinstatement of capital punishment in Canada, far exceeding the scope of the facts in the trial. The court also seems bound this fall to make Canada a haven for terrorists by refusing extradition of known terrorists who might face torture back home.

But the Court has also recently upheld the law banning kiddie porn (or sort of), curtailed the right of natives to exempt themselves from taxes and customs duties, denied Robert Latimer the constitutional right to kill his disabled daughter Tracy, and reaffirmed the Charter's protection of religious freedom.

It's a mixed record, to be sure. Still, a mixed record is better than the almost entirely preposterous record of the Lamer court.

Lorne Gunter Columnist, The Edmonton Journal Editorial Board Member, The National Post Tele: (780) 916-0719 Fax: (780) 481-4735

2001 CanWest Interactive