Beyond The Commons

Aaron Wherry covers all the goings-on in and around Parliament Hill. Follow Aaron on Twitter: @aaronwherry

Categories: Beyond The Commons, Capital Read

‘Reminding the minister’

by Aaron Wherry on Monday, August 15, 2011 10:00am - 24 Comments

Chief Justice Beverley McLachlin seconds the Canadian Bar Association’s February criticism of Jason Kenney.

“I was certainly — and I think all judges were — very pleased when an issue arose earlier this year when a Minister of the Crown seemed to suggest that some judges were insufficiently solicitous to government policy. We were very, very gratified to see your president writing a powerful public letter to the minister in question, reminding the minister of the importance of public confidence in an impartial judiciary, that bases its decisions on the law and not on government policy.”

Tags: Beverley McLachlin, Canadian Bar Association, CBA, courts, Jason Kenney, judiciary, justice

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Anonymous

I was astonished that a minister of the crown thought judges were SUPPOSED to follow govt policy.

Apparently living in Canada all their lives is no guarantee politicians understand how the system works!

Anonymous

I’m not sure why you would have been astonished.. it’s been pretty clear since day one that Harper and his entire inner circle feel that a government is only a tool for oppression. With that kind of attitude why else would they run for office except to attempt to use that?

Anonymous

Yes, they are old enough and educated enough to know better….so the question remains….why did they expect judges to follow govt policy?

http://dougsamu.wordpress.com doug rogers

I was amused, nay, terrified, when reading the comments at The Post at the howling vilification of the Chief Justice.
Anonymous

Has Brian Lilley posted his ‘Supreme Court Justices are Communists’ yet?
Anonymous

I prefer GG David Johnston’s commentary:

“Canada’s lawyers and judges are losing sight of their commitments to justice and the public good, and the profession must reform itself and rebuild the trust of ordinary citizens, says Gov. Gen. David Johnston.

In a rare, forceful speech at the opening of the Canadian Bar Association’s annual meeting in Halifax on Sunday, Johnston issued a stinging assessment of the legal profession and pleaded with it to change.”

http://www.ottawacitizen.com/Forceful%2Bgovernor%2Bgeneral%2Btells%2Blawyers%2BHeal%2Bthyself/5254397/story.html

Anonymous

Actually, that speech is kind of interesting. Personally, I wouldn’t have expected you to be lauding a speech that asked: “How many lawyers were silent in the face of a pattern of deregulation which has left the economy naked to excessive leverage, and which any thoughtful observer knew was bound to have its inevitable pendulum swing?”

Anonymous

Bravo Madame Chief Justice!
Strange concept indeed that judges who are called upon to interpret the meaning of legislation enacted by government to accomplish specific policy objectives, should give any thought at all to what those objectives might be in the course of so interpreting. As all we right-thinkers know, there are far more important factors to be weighed by our judges – like whether a particular decision will curtail the advancement of gays/women/first nations/immigrants (illegal or otherwise)/the poor/animals and/or vegetation/aliens/Omar Khadr – than what the government passed the law for in the first place.

Anonymous

Judges must consider not the opinion of the government but the laws – and all of them, not just those enacted by the government of the day.

Anonymous

Then why have elected government at all? Let’s just throw in the constitutional towel and let the judges make all the laws, since, when it comes to governance it is only their opinions that matter. Think of the money we’ll save!

Anonymous

False analogy. Interpret != create.

Judges only interpret the law where they have to, ie, where the intent of the legislation is not clear from the legislation itself. They cannot, and should not, be paying any attention to the government as that would create a strong bias against the individual toward government in any of their interpretations. And worse, would make it so that the treatment one can expect under the law varies based on the government in power. Surely even you can see how that’s not a good situation.

If you don’t like it when they interpret the law, the answer is simple, elect better politicians. Ones who are able to write a law without it conflicting with the Charter or other pieces of legislation.

Anonymous

“They cannot, and should not, be paying any attention to the government as that would create a strong bias against the individual toward government in any of their interpretations.”

“Bias(ed) against the individual” describes thousands of laws enacted every year. The entire Criminal Code is “biased against the individual”. Even when the Charter is invoked when someone is challenging a law, there is the qualifier that a law breaching the Charter is only offensive if the law is not reasonably justified in a democratic society. This qualifier is, in my view, more honoured in the breach.

“And worse, would make it so that the treatment one can expect under the law varies based on the government in power.”

The treatment once can expect ALWAYS varies based on the government in power. Under Chretien, long gun owners not inclined to register were criminals. Under Harper, not so much.

“If you don’t like it when they interpret the law, the answer is simple, elect better politicians. Ones who are able to write a law without it conflicting with the Charter or other pieces of legislation.”

I’m confident we’ve done that – given the time it takes for newly enacted laws to be challenged in court, it would mostly be Lieberal laws that are being found to conflict with the Charter or other pieces of legislation.

Anonymous

Then why have elected government at all? Let’s just throw in the constitutional towel and let the judges make all the laws, since, when it comes to governance it is only their opinions that matter. Think of the money we’ll save!

Anonymous

In fairness, if the government pays no heed to the reasons it passed a law (ala fixed elections) why on earth should the courts?

Anonymous

This is also the government that insisted that voters are required to show their faces at the voter booth for purposes of being visually identified even though voters are NOT required to show photo ID, begging the question, what were they expecting poll workers to compare voters faces too???

Anonymous

In fairness, if the government pays no heed to the reasons it passed a law (ala fixed elections) why on earth should the courts?
Anonymous

There is a little thing called the Charter that judges are guided by. This government sees it as an impediment to getting the ‘bad guys’ into jails. I trust, in time, a few members of Harper’s cabinet will come to appreciate the protection the Charter provides those charged with criminal offences.

Anonymous

But that it were “little” or a mere guide, instead of the blunt instrument of forced social change it has become in the hands of our unelected Trudeaupian appellate courts. I trust, in time, that Harper appointees to the bench will establish a far more appropriate balance between protections the justice system affords victims and perpetrators.
Anonymous

But that it were “little” or a mere guide, instead of the blunt instrument of forced social change it has become in the hands of our unelected Trudeaupian appellate courts. I trust, in time, that Harper appointees to the bench will establish a far more appropriate balance between protections the justice system affords victims and perpetrators.

http://www.facebook.com/stribe Scott Tribe

Of course, you forgot to mention that the Chief Justice was appointed by that noted Trudeaupian Brian Mulroney.

Anonymous

“Trudeaupian” was a reference to the enabler, rather than appointer.

http://www.facebook.com/stribe Scott Tribe

Of course, you forgot to mention that the Chief Justice was appointed by that noted Trudeaupian Brian Mulroney.
Anonymous

The question is: “Can CRAP find enough ethically-challenged mouth-breathers amongst the legal fraternity to fill the federal judiciary?

Anonymous

Based on the thousands of pages of judicial “reasoning” I’ve read in the course, there is a legion of mouth-breathers any one of whom will have no trouble exceeding the current standard.