CKNW Editorial
for August 10, 2000

Because the subject comes up so often, and because I am a lawyer by trade, I’d like to muse aloud a bit this morning about the justice system.

I am often accused of apologizing for the justice system and the accusation is dead right – I support the system and its integrity without hesitation. Judges cannot defend themselves against personal attack so when that attack takes place I will indeed rise to defend their honour. I have had callers in recent times imply that because they didn’t approve of a decision that the lawyers and the judge must be crooks … or, if not quite crooks, certainly pretty shady and thus, somehow, derelict in their duty. The lawyers can speak for themselves but the judges and the court cannot.

But that is not the same thing as being critical of a judgment or indeed the way judgments seem to be tending. I have been highly critical of a number of decisions as listeners will know. I have also been vocal in my condemnation of what I see the Supreme Court of Canada becoming, namely a maker of social policy.

I have also called into question the right of certain judges to sit on matters – in particular I have questioned the right of one Appeal Court judge to sit on any case involving native affairs and I would be very surprised if he did so sit.

I have been and no doubt will be critical of some judgments … but I hope I will always differentiate between the judgment and the person of the judge and the integrity of the system.

I must also add that if I did feel that the integrity of a judge was in issue I hoe I would say so. In fact I did so when it was suggested that a judge had been drinking when giving additional instructions to a jury late in the evening. Happily, those cases are very rare. Where I think the public has a problem is that they see injustice all around them and feel they have nowhere to turn.

You will not, I daresay, be surprised to learn that where most of the criticism ought to be directed is to Parliament or the Legislature. For it is there that most of the laws enforced by the courts are passed. It is there that sentences are laid out, where offences are defined and where laws are written. A very good example is the Stockell case where those mad at the courts ought to look at the Elections Act. I have no doubt whatever that Madam Justice Humphreys was right. It may well be that the Elections Act ought to cover what the NDP did with its fudge-it budgets but in fact it does not. If the judge were to re-write to suit, we would rightly complain that she had usurped her function.

Indeed, that’s the very thing we accuse the Supreme Court of Canada of doing. We say, and rightly in my view, that the top court of the land is legislating, not deciding the law. But we must remember that it was the politicians, namely Pierre Trudeau, which created through the Charter of Rights and Freedoms, a situation which the judges cannot ignore. If legislation violates rights, the court is bound to say so.

Perhaps a better example is from a year or so ago when a Supreme Court Judge held that prosecution for possession of child pornography violated the Charter of Rights and Freedoms. The judge was called Mr Justice Bonehead by one of my colleagues.

The judge was not deciding what he thought was proper behaviour and he wasn’t trying to make a decision that would accord with the general sentiment of the public. That’s not what judges do. He was looking at what parliament had said in light of what the Charter of Rights says. Knowing the judge as I do I am sure he was revolted at the evidence he had before him. The personal attack on him was utterly unwarranted. It may be that the judge and the majority in the Court of Appeal that sustained him will have their judgments overturned by the Supreme Court of Canada but that will not because the lower court judges were bad people, boneheads if you will, but because the top court of the land comes to a different conclusion as to what the words meant.

I realize that the foregoing has rambled a bit so let me sum it up this way – we are not only free to discuss and, if we wish, criticize judgments, the system of justice and the laws themselves we must also do that respectfully insofar as the integrity of the court itself or the judge is concerned. That doesn’t mean we must grovel – it’s quite open for us to think and say that the judge was full of prunes … or whatever. What it does mean is that if we call into question the honesty of the judge and the process for no better reason than we don’t like the decision, that questions the integrity of a person who cannot fight back … and the entire court system itself. And we must ask ourselves if we really intend to do that.