GUNTER: It's fair game to criticize Canada's leading judges & More News Here

Article content material

Ahh, the poor, fragile dears on the Supreme Court. To hear Chief Justice Richard Wagner inform it, the justices don’t like criticism of their choices.

Article content material

Well then, in the event that they don’t like criticism, they need to cease making ideological choices.

But that’s on the core of Wagner’s criticism. He (and his predecessor) actually consider they don’t make ideological choices.

They’ve informed themselves they’re purely neutral revealers of the authorized fact, like judicial Michelangelos. (The nice Renaissance sculptor as soon as defined, “Every block of stone has a statue inside it and it is the task of the sculptor to discover it.”)

In a uncommon public interview, Wagner informed the CBC (who else) on the weekend that criticism of judicial choices is unfair. He even warned criticism might be harmful. (More on that in a minute.)

To Wagner’s mind-set, criticizing the work of the justices is unwarranted as a result of they don’t make biased, political choices. They work very laborious to reveal solely the reality contained in every case introduced to them.

Article content material

What garbage. They’re human, so by nature they’ve biases. They can work on lessening the affect of their biases, however they’ll by no means overcome them fully.

Yet “progressive” justices – like “progressive” politicians and activists in all places – stay beneath the delusion that, as the neatest, most caring individuals they know, their each opinion is an goal fact. Meanwhile, everybody else’s opinions are nothing greater than harmful, divisive misinformation.

The chief justice who Wagner changed, Beverley McLachlin, made just about the identical, unrealistic assertion. In a 2004 speech, McLachlin bristled at allegations that “the Courts are running the country at the expense of Parliament and the Executive.”

Article content material

That wasn’t true she insisted, “The answer is very clear and very simple … the truth lies in the Constitution.” Like the sculptor of marble, all judges are doing is uncovering the target fact that was already there.

And that’s the place the hazard begins.

After claiming justices had been incapable of mental bias, Wagner and McLachlin each went on to insist criticism of their choices was, due to this fact, a risk to Canadian democracy.

McLachlin claimed recommendations that judges had an agenda aside from pure justice undermined our establishments, whereas Wagner insisted criticism was a risk to judicial independence.

It isn’t any such factor.

In democracy, criticism of politicians, bureaucrats, judges, journalists and everybody else within the system goes with the turf. The declare that some gamers are above criticism – Wagner’s and McLachlin’s place – is the anti-democratic notion.

Article content material

Indeed, it’s the unrealistic declare that judges don’t have any bias that undermines the credibility of the courts. The public doesn’t purchase judicial infallibility, nor ought to they.

It is doubly justified to criticize judges when the courts have a lot sway over public coverage in Canada – abortion, Indigenous rights, public vs. personal well being care, obligatory unionization, carbon taxes, pipelines, same-sex marriage, medically assisted demise, minority languages, how lengthy jail sentences must be. The record goes on.

Gay rights are on an equal footing in Canada as a result of an earlier Supreme Court “read them in” to the Charter the place the framers of the Charter had consciously left them out. That final result is an effective factor, however the course of and the choice itself had been overtly political, and thus open to political criticism.

If Wagner doesn’t need to be criticized (and, extra importantly, if he doesn’t need judicial impartiality undermined) then he additionally has to cease commenting on points not earlier than the court docket, comparable to when, in April, he referred to as the Freedom Convoy “anarchy” and charged that the truckers’ actions amounted to “taking other citizens hostage.”

Even the Supreme Court’s current determination that denying the opportunity of parole to mass murders quantities to “cruel and unusual treatment” is overtly political.

Taking criticism goes with the job, even for judges.