CKNW Editorial
for October 4, 1999

One who didn’t know better might think I have it in for John Reynolds, the Reform Party’s senior justice critic. In fact, I have known Mr Reynolds for over 20 years, though not intimately, and our relations have been generally cordial. I happen to believe, however, that he is badly violating his responsibilities as Justice Critic.

Let’s start from scratch. The vast majority of people, who all have busy lives, many of them hard lives where keeping the wolf from the door is the main problem, do not spend large amounts of time thinking about the principles of freedom upon which our society is based. They assume that people in charge will always respect our institutions and not talk about changes to them unless the changes proposed are responsible.

When we go to school we learn things – often filed in the backs of our minds and not thought of much thereafter. One of those things, I daresay, is the rule of law and the independence of the judiciary.

In many ways, so we are rightly taught, our freedom depends upon those two factors. If those set in authority over us do not govern under the rule of law then we’re a dictatorship. If the authorities interfere with the administration of justice, again we have a dictatorship. Within the last month or so, Mr Reynolds has proposed that we abandon both the rule of law and the independence of the courts.

We have talked enough about his branding refugee claimants as criminals before a word of evidence is heard … which, if it were coming from some ignorant demagogue seeking a headline I could understand but Mr Reynolds is not ignorant … which is what makes what he says so scary … and what must give us pause to consider the Reform Party itself.

But now Mr Reynolds proposes that Judges be hailed before the Justice Committee of Parliament to justify their decisions. And this suggestion will no doubt be met with approval not only by the bottom feeders which are the core support of the Reform Party but by many who don’t think it through.

It took centuries for citizens to tear the administration of justice away from the King. When this was finally accomplished, we had freedom from capricious, dictatorial rule by the political authority in the land. I can’t over-emphasize this point. It was the final surrender of the right of the King and his politicians to judge subjects that gave those subjects their freedom.

When that happened – it was a long, often bloody, evolutionary process – judges were given tenure. In fact they were appointed for life. This again was important because it meant that the politicians couldn’t fire judges whose decisions didn’t please them. Indeed this was critical. Now someone has to appoint the judges in the first place and that has to be the politicians but in this country, over the years, we have made great strides in seeing that these appointments were based upon competence, not politics. And we retire judges at 75. The system is not perfect but it’s now pretty good.

Other safeguards are built into the system. All cases when first heard carry the right to appeal. Often that right is two fold and the case can go to the Supreme Court of Canada.

Now let’s look at the area where Mr Reynolds is making his big fuss – criminal law. And this is a great political button for Reynolds to push because he knows that, despite statistics to the contrary, people believe that violent crime is on the increase. He also knows that in the best of regulated jurisdictions there are always horror stories which make the headlines. He also is aware, as most of us are, that some offences such as possession of drugs and even trafficking, when it’s to sustain an addict’s addiction, are so common that there simply isn’t jail room to contain the offenders.

At this point we have arrived at the crux of the matter, something that Mr Reynolds and his ilk like to gloss over lightly. The responsibility for the Criminal Code is in the hands of him and his fellow parliamentarians. That’s an unpleasant pill for Mr Reynolds to swallow but it’s true. It is particularly apropos to note that ranges of sentences are passed by Parliament, not the judges. And it must also be noted that the number of jail cells available for prison sentences are up to Parliament.

What Mr Reynolds proposes, if ever brought into effect – that is the hailing of judges before politicians to justify their actions – would literally, and I’m dead serious – put us back into medieval times. It is horrifying beyond belief to think that any politician, let alone the senior justice critic of the Reform Party should make such an appalling suggestion.

How are judges held to account?

By appeals to a higher court.

What if they misbehave? – by judicial councils which, in those rare times actual misbehaviour has occurred, have been able to secure the retirement of the judge so that the matter doesn’t need to go to parliament where the ultimate power to remove rests.

No, the system is not perfect. It’s not perfect because it’s run by human beings. The Supreme Court of Canada has come in for much criticism, from me as well as others. But again it is the lack of courage in parliament that’s the problem. It has the power to pass laws notwithstanding the Charter of Rights and Freedoms if it thinks the courts are giving too many rights to accused people.

There has scarcely been a dictatorship happen without interference with the independence of the judiciary being the first order of business of the dictator. Those of you who, unthinkingly I believe, applaud Mr Reynolds when he would deny due process to some and call judges to account before politicians will, I hope, think long and hard about what he’s saying. Because when the day comes that any judge, be it a justice of the peace in a faraway community, a provincial court judge or any other kind of judge is answerable to politicians, not the rule of law, for their decisions we are in deep, deep trouble.

Just a final word. Mr Reynolds and others mock statements like these as being what you’d expect from a lawyer. But I didn’t learn these principles of democracy and freedom in Law School – I learned them in the public school system of British Columbia. We’re not talking legalistic hairsplitting here, we're talking about the fundamental principles of democracy which set us apart from those countries where the politicians control the judicial system.

When a man in Mr Reynolds position doesn’t understand this or, worse, understands it but plays politics with democratic principles, it’s time we looked very carefully at that man and the party he speaks for.