National Post

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Wednesday, December 29, 1999

Don't speak!
National Post

Justice Louis LeBel, the newest appointment to the Supreme Court of Canada, says the judiciary needs to make a greater effort to communicate with the public. Academics recommend that judges should engage in this dialogue not only with the public but also with federal and provincial legislatures.

It all sounds very democratic. Who, after all, could be opposed to dialogue? Did not Winston Churchill himself say that "Jaw, jaw is better than war, war"?

And greater dialogue may well be a fitting remedy for quarrelsome states, estranged friends and star-crossed lovers -- and for anyone foolish enough to contemplate a needless legal action.

But what would a judge talk to the public or Parliament about? He cannot discuss actual cases likely to come before him, and he should not discuss the wisdom of the laws he is obliged to interpret. Ideally, his political opinions should be irrelevant to his legal judgments. A top-hatted capitalist going before a judge with known Communist views should feel confident he will examine how the law applies to the facts of the case with complete impartiality.

And though higher courts must sometimes resolve legal ambiguities or constitutional clashes, they are supposed to do so within the narrowest political limits, consulting not their own convictions but precedent, the intentions of Parliament, and the Common Law.

When judges step outside of these limits and propose their own political reforms -- or, worse, make new laws by dressing up their political opinions as judicial interpretation or review -- they become politicians. And since no one elected them and no one can vote them out of office, they become undemocratic politicians.

So, judge, don't speak!

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