TorontoSun.com - Commentary - EDITORIAL: The right to judge judges

TorontoSun.com - Commentary - EDITORIAL: The right to judge judges:

For the love of God, can we please end this hysterical over-reaction to innocuous remarks by a Conservative MP about judges seeing themselves as gods?

There certainly is a lot of frothing over the resignation of Maurice Vellacott from his duties as chair of aboriginal affairs. This editorial from the Toronto Sun says he shouldn't have resigned, but there's also the suggestion that his comments were, in fact, true, even if the person he claimed said them never did, lol.

"[Chief Justice]Beverley McLachlin herself actually said that when they step into [a judicial activist] role, all of a sudden there's some mystical kind of power that comes over them by which everything they ever decreed is not to be questioned and they actually have these discerning and almost prophetic abilities to be able to come and know the mind of the public and they take on almost these godlike powers," he said during the interview.

"She said that herself. I didn't say that."

The trouble is, she didn't say anything of the sort. This is what McLachlin actually said ...

"The rule of law requires judges to uphold unwritten constitutional norms, even in the face of clearly enacted laws or hostile public opinion. There is certainly no guarantee or presumption that a given list of constitutional principles is complete, even assuming the good faith intention of the drafters to provide such a catalogue ... Judges have the duty to insist that legislative and executive branches of government conform to certain established and fundamental norms, even in times of trouble.''

The implication here, from the editorial and Vellacott's comments is that there's something wrong with the Supreme Court sitting in judgment of the laws of our land. Forgive my ignorance ... my understanding was its entire reason for existence is to act as a check on the elected Legislature, ensuring that laws passed conform with the established principles of Canadian life.

"Activist judges," as they are typically called of late, are the people who will stop the government from passing laws that infringe our rights ... it is, in fact, their whole reason for existence. If judges as a whole, and Supreme Court judges specifically, aren't supposed to cast judgment on matters of law, aren't supposed to question any law passed, then what is their point? If the law passed by Parliament was the law of the land, without question or appeal, then there's no need for judges at all, only for people to pass sentence when someone transgresses rules.

Judges exist to be able to weight individual situations, to be able to examine the validity of laws in light of those circumstances, to ensure that the laws we pass do not trample on fundamental rights. That IS their reason for existence, and they MUST be allowed the independence to fulfill that reason.

What McLachlin said was perfectly legitimate. She described the role of judges perfectly, and she described the reason for the Supreme Court's existence. Vellacott is obviously entitled to his own opinion, but intentionally misrepresenting the remarks of someone else is an action that does NOT speak to the character of a Cabinet Minister. He has since retracted those comments, but that's hardly the point, as they've already been made ... the fact he was willing to make them in the first place is what matters.

Vellacott and others are free to argue that the judiciary should be neutered and not allowed the latitude to question Legislature. That does seem to be what people are suggesting here ...

Problem is, if public opinion, the law and the elected House of Commons are not to decide what these norms are, it obviously and clearly leaves that privilege to the Supreme Court. Giving judges on that court a status that is, yes, almost God-like.

Michael Coren, May 13, 2006

But that seems to me a dangerous position. The role of the judiciary is to serve as a check on the legislative branch, while the legislature checks the judiciary through laws. As soon as one side is given more power than the other, the balance is broken, and the whole system falls apart.

Vellacott was right to resign ... or to be asked to resign, whichever it was. He is free to hold these views, and it wasn't his views that got him fired. It's the fact he was willing to misrepresent her views in the first place. It either shows a lack of morality to lie about her, or a lack of diligence in research for getting her remarks so wrong. It wasn't about his views on the judiciary really ... it was about his willingness to smear McLachlin with comments she never made.

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