Sun, June 13, 2004
Time to bring on the judicial circus
By Ted Byfield

We keep hearing from the liberal end of the legal profession on the need to preserve the "dignity" of the courts by protecting judges against the slings and arrows of political criticism.

Judges are not politicians, one University of Toronto professor of law wrote last week, so they should not be treated like politicians.

He does not seem to understand that judges are being treated like pols because the judges themselves elected to act like pols.

Ever since the Charter of Rights appeared, they have chosen to wield political power. Now they are paying the political price.

They want to order us around -- to tell us how we may or may not raise our children, what sexual activities we may or may not publicly disapprove of, whether an unborn child should be fair game for killers -- but they do not want to be subject to criticism.

Nonsense, their defenders would hasten to reply.

The judges did not make themselves into lawmakers.

The Charter imposed on them the duty to interpret it, and thereby make the law.

That is precisely half true. It's true that the Charter afforded them the opportunity to interpret. But it did not deny them the right to refuse to make an interpretation, on the grounds that this was something Parliament must decide.

The judges, that is, could easily have refused the political role. Rather, they opted to plunge into the political arena, "reading into" the Charter provisions that Parliament had specifically decided to omit.

That decision, made entirely by the courts and in no sense whatever imposed on them, was in fact the decision to become politicians -- to make themselves into unelected legislators.

And as the public becomes more and more aware of what they're doing, people more and more resent it.

We resent in particular the fact we're permitted to know nothing whatever about these people -- our rulers -- before they're appointed.

The American system, which our Charter emulates, provides that the U.S. Senate must approve all federal judicial appointments.

There is a public examination of each candidate and frequently a public controversy over a candidate's acceptability.

Such a prospect appalls our court's defenders. "A circus!" they declare. "A political circus!

We mustn't allow this dreadful thing to come into our Canada."

And of course, it is indeed a political circus. Democracy is a political circus. Election campaigns are political circuses. Parliament itself is a circus. Freedom of speech creates circuses.

This is our system, and the whole world seems to want to live in it.

Anyway, Paul Martin, in the halcyon days before he became Liberal leader, promised that he would subject judicial appointments to review by a parliamentary committee.

The "circus" yowl went up -- chiefly from the law faculties and some judges, one of them the chief justice herself.

So Martin backed off.

Then he was accused of waffling on an election promise, so he backed on again. With the issue unresolved, he called the election and two seats are about to become vacant on the nine-member Supreme Court.

In the meantime, the law professors came up with another dodge.

Rather than have the candidates examined by a parliamentary committee, where mere elected politicians (ugh!!) could ask heaven knows what, why not have a specially picked panel of specially qualified people, who could ask specially chosen questions under specially precluding circumstances.

Wouldn't that suffice?

As a matter of fact, no. Thanks to the way the courts have chosen to use the Charter, we are now largely governed by judges.

A full public examination before a parliamentary committee representing all the political groups in the Commons is the democratic way of appointing them.

So bring on the circus.

One more point. Rather than hear endlessly from law professors on this subject, perhaps another species of academic -- say, a social psychologist -- could explain something.

How is it possible to transform overnight a party-line, political-pawn, bagman lawyer into the kind of all-seeing, omniscient, higher being who, according to our chief justice, typically sits on the Supreme Court of Canada, moulding us and shaping us into the kind of people they have decided we must become.

It's amazing what miracles can be wrought by wearing a red dress.