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Speech in Senate Chamber: Senator Cools speaks to her inquiry on Alberta Court of Appeal Justice John Wesley McClung, the decision of the Supreme Court of Canada on the sexual assault case 'Her Majesty the Queen v. Steve Brian Ewanchuk', statements in news media by judges, judicial activism and judicial independence.

Hon. Anne C. Cools rose pursuant to notice of March 2, 1999:

That she will call the attention of the Senate:

(a) to the judgment of the Supreme Court of Canada in the sexual assault case Her Majesty the Queen v. Steve Brian Ewanchuk, delivered February 25, 1999, which judgment reversed the Alberta Court of Appeal's judgment upholding the trial court's acquittal;

(b) to the intervenors in this case, being the Attorney General of Canada, Women's Legal Education and Action Fund, Disabled Women's Network Canada and Sexual Assault Centre of Edmonton;

(c) to the Supreme Court of Canada's substitution of a conviction for the acquittals of two Alberta courts;

(d) to the lengthy concurring reasons for judgment by Supreme Court of Canada Madame Justice Claire L'Heureux-Dubé, which reasons condemn the decision-making of Mr. Justice John Wesley McClung of the Alberta Court of Appeal and the decision of the majority of the Alberta Court of Appeal;

(e) to Mr. Justice John Wesley McClung's letter published in the National Post on February 26, 1999, reacting to Madame Justice L'Heureux-Dubé's statements about him contained in her concurring reasons for judgement;

(f) to the nationwide, extensive commentary and public discussion on the matter; and

(g) to the issues of judicial activism and judicial independence in Canada today.

She said: Honourable senators, one wonders what American feminist Catharine MacKinnon's book, The Theory of the Feminist State, has to do with law and jurisprudence in Canada. What does a raw, gender feminist, ideological diatribe that seeks to criminalize man-woman sexual relations have to do with the Supreme Court of Canada, or with an Alberta Superior Court judge, the grandson of Nellie McClung? Catharine MacKinnon, a gyno-centric feminist, postulates that man-woman sexual relations are abhorrent because they violate women, and that in a patriarchal society all heterosexual intercourse is rape. MacKinnon helped to craft sexual assault laws in Canada. This gender feminist ideology has driven much law in Canada, and consequently has driven much injustice. It has ravaged law, justice, many careers, and many human lives. It worked for many years. It was even lucrative. It resulted in positions, jobs, grants, and even appointments to the bench. It created a terrible silence as it inflicted obvious injustices on many. It was buttressed by feminist terrorism and aggression, ready to pursue to destruction anyone who gets in its way, while chanting its mantra that all evil and violence are men's, and that all goodness, virtue, and truth are women's. This week, it is driving an attack on Mr. Justice John Wesley McClung of the Alberta Court of Appeal.

Honourable senators, the political divide on the bench between the activist judges - some charter, some feminists - and the traditionalist judges, supported by their corollary divide at the bar, has erupted into public consciousness with the force that attends the eruption of a longstanding, fomenting social problem. I speak of the Supreme Court of Canada judgment delivered on February 25, 1999 in the case of Regina v. Steve Brian Ewanchuk, in particular, Madame Justice Claire L'Heureux-Dubé's concurring reasons for judgment and her stinging attack on Mr. Justice John Wesley McClung, and his distraught letter to the National Post.

Mr. Justice McClung is a scholar of the law, a great jurist, and a great luminary of the bench of Canada. He has upheld the law as an instrument of justice. He has upheld parliamentary institutions as the givers of the law and public policy, and has declined to join the current judicial activism and certain judges' unashamed and unabashed entry into politics. He is persona non grata with the judicial, charter, and feminist activists.

The Supreme Court's Madame Justice Claire L'Heureux-Dubé is well known as a feminist judge.

About judicial activism and its consequences, Professor Diane Martin of Osgoode Hall Law School, in an April 18, 1998 Globe and Mail article, entitled "Lawyer says top court deserves tough criticism," said:

Children and women are treated as truth tellers for the purposes of their claims . . .

A trial is not a determination of what happened anymore. The presumption of innocence has taken a major hit over the last 15 years under the guise of offering protection to vulnerable witnesses.

Sexual assault trials are a case in point.

Honourable senators, these two justices, McClung and L'Heureux-Dubé, have dominated news reports this week. Shortly after his first letter, Mr. Justice McClung apologized profoundly and generously to Madame Justice L'Heureux-Dubé for his hasty letter. This apology was published on March 2 in the newspapers. "Off with his head," shriek his critics, many gender feminists and their supporters, as they polarize and mobilize citizens to Madame Justice L'Heureux-Dubé's side. "Complain to the Judicial Council," and "Remove him," shriek others. The public has no appetite for gender feminist injustice and the public discussion is revealing this. Criminal lawyer Edward Greenspan's op-ed entitled, "Judges have no right to be bullies," in the National Post of March 2 stated, at page A18:

The profound reaction of the legal community, lining up on Judge L'Heureux-Dubé's side and ignoring the fact that her hurtful and thoroughly unnecessary words started the battle, is a striking example of how politics has taken over the issues surrounding sexual assault. It is clear that the feminist influence has amounted to intimidation, posing a potential danger to the independence of the judiciary. I deplore any attempt to use the Canadian Judicial Council as an agent of the women's movement, through the filing of complaints against judges whose remarks do not accord with the feminist world view. Feminists have entrenched their ideology in the Supreme Court of Canada and have put all contrary views beyond the pale.... But to call for Judge McClung's removal or censure means the feminists and their fellow travellers have created such a repressive and authoritarian world that certain words are not only unacceptable, but now constitute misconduct. The feminist perspective has hi-jacked the Supreme Court of Canada and now feminists want to throw off the bench anyone who disagrees with them...

Judge L'Heureux-Dubé was hell-bent on re-educating Judge McClung, bullying and coercing him into looking at everything from her point of view.

Honourable senators, as members of Parliament, we have a special role in the superintendence of the behaviour of judges and a representative role in upholding the public interest in this. I believe that radical judicial activism is a serious threat to parliamentary sovereignty and its corollary, judicial independence. Judicial independence, which I strongly support, is a constitutional convention that governs the proper relationship between the cabinet, Parliament, and the judiciary. Constitutional conventions are political rules of political conduct that govern the politician's exercise of power. Conventions are not law and are not enforceable by the courts. They are a political morality and are enforced by politics, politicians and political process. In respect of Mr. Justice McClung's letter to the newspaper, I must assert and support the traditional principle that public statements on public issues are inappropriate for judges.

Honourable senators, last August 23, 1998, at the Canadian Bar Association's annual meeting in Newfoundland, Supreme Court Chief Justice Antonio Lamer made some well-publicized political and public statements condemning judge-bashing and also about judges' need to speak publicly. He asked the Judicial Council, of which he is the chairman, to address the issue. Chief Justice Lamer makes such public political statements regularly. For example, in his CPAC television interview on December 9, l996, he criticized the Senate's actions to change Bill C-42, which he called the "Louise Arbour amendment." A few days prior, the Senate had rejected, nay defeated, Chief Justice Lamer's own will and intentions about Canadian judges' international activities and their remuneration. He said:

. . . I was a little disappointed . . . when the Senate amended this Arbour amendment.

I was a little disappointed, but I found another way, and I'll be going to have lunch today with Madame Huguette Labelle, the head of CIDA, then I think we're going to go through CIDA. Well, where there's a will, there's a way.

I'm speaking to Madame Labelle, as I said, I'm having lunch with her today, then I will be speaking to the Commissioner of Judicial Affairs Friday. I'll have lunch with him Friday and I think we'll get the ball rolling very soon.

Again, in an August 29, 1997 article, "Canada's new global role: 'Juges sans frontières'," when Lawyers Weekly asked Chief Justice Lamer about the senators' objections to Canadian judges' off-the-bench foreign activities in Bill C-42, he said, at page 2:

I don't think that criticism was valid, and I don't think that most members of the Senate agreed with that criticism . . .

So much for Parliament's will and Parliament's unanimous vote.

Honourable senators, the Chief Justice is quoted frequently on many public policy and political issues, including bills in Parliament, Senate work, abolition of the Royal Assent ceremony, and other questions. In fact, the Supreme Court's Chief Justice Lamer has led on judges' public statements in the media and on public statements about judge-bashing. No judge can now assert that Justice McClung should not have spoken in the media nor that Justice McClung should not speak publicly against judge-bashing. Further, those who assert that Justice McClung should be investigated by the Judicial Council, of which Chief Justice Lamer is the chairman, fail to note that the Supreme Court and its judges have led in this activity. The Judicial Council, or rather the sections of the Judges Act that create the Judicial Council, need Parliament's review and change. These provisions predate the Charter of Rights. I muse as to why the Supreme Court has not struck down those sections on the grounds that they predate Charter values. Those sections, enacted in the 1970s, never anticipated these current problems, nor the courts' own Charter activism. It is evident that the Judicial Council is not competent to investigate any judge, particularly Mr. Justice McClung, because of politics itself on the bench and the now very political nature of the Supreme Court. The notion of investigation of a judge solely by judges is quaint, but is rendered obsolete by the politicization of the court by its own political activism and by the judges' own political and ideological clashes on the bench during decisions.

Honourable senators, the issue was an appeal in the case of R. v. Steve Brian Ewanchuk. In Canada, an accused has the right to a fair trial and a fair judgement, uncluttered and unaffected by conflict between individual judges, between levels of judges or between regions of Canada's judges. That duty owed to an accused is the first and highest duty of the court. In any appeal, a first principle is that appeal justices, in reviewing the lower court judges' work, must limit themselves to the law, particularly errors in the law, and not offend nor attack their integrity, intention or intellect.

About Madame Justice L'Heureux-Dubé, Mr. Greenspan wrote in his article that:

She tagged him with a label that she has not right to tag him with. She was intemperate, showed a lack of balance, and a terrible lack of judgment.

I would live by a rule that when a judge overrules, it is wrong to also pour salt in the wound or step on the lower court judge's face.

Another principle of adjudication holds that, at appeal, lower court decisions are overturned cautiously and only with reference to law, because lower court judges are in the field, so to speak - in this instance, in Alberta - and are considered closer to the community and the facts.

Honourable senators, I move now to judge-bashing, that subject raised so publicly by Chief Justice Lamer last summer, in particular, judge-bashing of judges by judges and particularly of traditionalist judges by activist judges. Mr. Justice McClung was very insulted by Madame Justice L'Heureux-Dubé's negative statements about him in her reasons for judgment. He felt denigrated intellectually and professionally. He felt judge-bashed. He responded impetuously. In his letter, he unfortunately mused about the men driven to suicide by maltreatment in the courts by feminist or otherwise doctrinaire judges, an important social question. He had no knowledge of Justice L'Heureux-Dubé's personal tragedy of her own husband's suicide. To attribute such malicious motive to him is an act of mean-spiritedness. Some have found it expedient to do so, ignoring the personal fact that his own father, Nellie McClung's son, had also committed suicide.

His distraught, impetuous letter reveals his own feelings of violation, intellectually and morally, by a fellow judge in an activist higher court which had trampled on him and his decisions before. His are genuine feelings of hurt. However, they are not permitted to judges, or, rather, the feelings are permitted but are not allowed public action in newspapers. Is his grievance a real grievance? If so, in which court does corrective action rest? Where does a remedy rest for his grievance from her excess, or must he simply bear it and endure it like a man? The issue turns on these questions. What is the judicial remedy for excess or abuse from one judge to another or from one court to another? What are the consequences for justice itself and for the accused, the recipient of the said judgment?

Honourable senators, I turn now to Madame Justice L'Heureux-Dubé and her reasons for judgment which denigrated Justice McClung and provoked his letter. Her statements stung Justice McClung and the majority of the Alberta Court of Appeal. They are instructive of sexual assault cases currently. She states, at paragraph 82:

This case is not about consent, since none was given. It is about myths and stereotypes, which have been identified by many authors . . .

Later, at paragraph 95, she states:

. . . they should not be permitted to resurface through the stereotypes reflected in the reasons of the majority of the Court of Appeal. It is part of the role of this Court to denounce this kind of language . . .

Honourable senators, it is not the role of the Supreme Court of Canada to denounce any judge of this land. A judge holds office by commission from Her Majesty. Any censure of a judge is the business of the Sovereign or of Parliament. Madame Justice L'Heureux-Dubé cites little law save her own judgements, and relies on Catharine MacKinnon's Toward a Feminist Theory of the State and other similar American texts. She also relies on former Supreme Court Justice Bertha Wilson's speech Will Women Judges Really Make a Difference?, published in the Osgoode Hall Law Journal, Volume 28, which speech in turn relied on gender feminist Carol Gilligan's book In a Different Voice that explained male and female morality and concluded the moral superiority of females. Bertha Wilson said, at page 520:

Gilligan's work on conceptions of morality among adults suggests that women's ethical sense is significantly different from men's. . . . Women see moral problems as arising from competing obligations, the one to the other; the important thing is to preserve relationships to develop an ethic of caring.

Honourable senators, morality, ethics, and altruism are not gendered characteristics. Such propositions by Carol Gilligan and Catharine MacKinnon should be roundly condemned as the intellectual fraudulence that they are and should be shown to be unsupported by scientific research. Finally, in sexual assault cases today, consent is a state of mind of the complainant verified only by her testimony. Justice McClung felt violated. Perhaps his state of mind on reading Justice L'Heureux-Dubé's reasons should receive some attention, as should the state of mind of the accused. Perhaps the state of mind of the nation ought to be considered. The public mind has witnessed this spectacle all week and has pondered the consequences for justice itself, as in this judgement, and the meaning of the words, placing the administration of justice itself in disrepute. So much for the slogan "leave it to the courts." For myself, this has been a profound reaffirmation in the sovereignty of Parliament. The question now emerging in the public and in the accused's mind is that perhaps the judgement, and the imposed conviction by the Supreme Court, may now be impugned or put in question. It may even be corrupted in the parliamentary sense, as a corrupt proceeding.

The Hon. the Acting Speaker: I regret to inform the honourable senator that her time has expired.

Senator Cools: Honourable senators, might I have leave to finish? I am just about at the end.

The Hon. the Acting Speaker: Is leave granted?

Hon. Senators: Agreed.

Senator Cools: It may need to be ousted by Parliament, the Highest Court of the Land. However, it is clear that the Judicial Council is not competent to process complaints against Justice McClung because the essence of such investigation is the proper relationship between the two levels of court and the proper behaviour of Supreme Court judges to lower court judges from the regions of Canada. Such an investigation would require a review of the Court of Appeal judgment and a review of the Supreme Court judgment. The Judicial Council is chaired by the Supreme Court's Chief Justice. No court can review its own judgment. Further, Chief Justice Lamer is the leader of public statements against judge-bashing, unless of course he intended to exempt the Supreme Court of Canada's own judge-bashing of other courts' judges. What are the rules, and who makes them? The Judicial Council lacks legal authority to hear such complaints. The only competent court is Parliament, the highest court of the land.

Honourable senators, watching this exchange and the discussion in the newspapers, I feel very proud to know that we live in a country that still upholds, at least in theory, the concept of the sovereignty of Parliament.

Hon. Jerahmiel S. Grafstein: Would the honourable senator allow a question?

Senator Cools: Certainly.

Senator Grafstein: I first wish to commend Senator Cools for this fascinating investigation in the very grey area of surveillance and accountability and where one draws the lines.

Is the Judicial Council not the short answer to her search for a remedy? Mr. Justice McClung, rather than sending his intemperate letter, could have, in the normal course, sent a letter of complaint to the Judicial Council. The Judicial Council being seized of the matter, I think, would be appropriate, and I do not think Senator Cools argues with that. She does question whether that proceeding would be tainted by a conflict since it would be chaired, in effect, by the Chief Justice. Would it not be the appropriate role for the Chief Justice, having received such a complaint, to excuse himself and allow the Judicial Council to be constituted of judges who were completely independent of the matter and free of any possible allegations or complaints? Let the matter be dealt with that way, as opposed to an open forum here in Parliament.

I put that as a suggestion. This is a fascinating and puzzling question that I think should be resolved.

Senator Cools: Thank you for the question. I am happy to receive it.

First, I am not making any proposal. I am simply calling the attention of the chamber to the fact that this debate is raging in the public domain. I thought it would be useful and informative to put some of it on the record. Let us be quite clear that I am not at this moment making a proposal. Neither is this my last speech on the subject-matter.

I am speaking to more than just the issue of a person. There is a set of principles here in terms of the proper relationships between courts and judges. I have begun to review, again, the debates, the discussion and the thinking that created the Judicial Council. I can tell you that, at the time the Judicial Council was created, it did not anticipate these kinds of difficulties of today's judicial community. The problem is virtually unknown. I am not sure if it is totally unknown or whether this is the first time that it has flown into the public consciousness.

I would refer to Eddie Greenspan's article, the one I cited just a few moments ago. He made an interesting remark. He said something to the effect that frequently in courts many litigants and lawyers are subjected to insulting or inappropriate remarks from judges. That is fine. In that instance, those kind of complaints are properly put before the Judicial Council. However, I am going to a deeper principle.

What we are looking at here - because it is such new ground - is that the possibility exists that the preoccupation may have caused the judgment itself to be placed at risk. I am not suggesting that I have an answer. I am merely raising that question. As the debate continues in the public mind - and, if one is following the newspapers and reading them daily, one can see it unfold almost like an onion - this issue is not a personal matter. We are talking about a judgment of the court which was the final court of appeal on the matter and statements contained within it that have caused terrible offence. I am saying that it is time for us to bring the discussion into the cognizance of Parliament and to begin to answer these questions.

I have been watching and listening all week as some of the legal minds in the country have been grappling with this issue. In the long run, the real question and the real issue that they will have to address is that, at the end of the day, the only court that has authority to review everything is this court, the highest court of the land. That is all that I am reminding people.

I have received dozens of phone calls on these issues. We are now living in a community where the average citizen of this land no longer understands that Parliament is the highest court of the land. That is what I am trying to reassert in very clear terms.

These statements are recurring. I have endless judgments here. There is another judge, Mr. Justice George Finlayson of the Ontario Court of Appeal, who has been making similar statements. These headlines are raging across this country. In The Toronto Star on October 14, 1998, the headline read, "Accused need protection in sexual assault cases: judge." The appeals court judge went on to say that too many allegations were sponsored by ulterior motives. The judge himself is making these kinds of statements.

I am attempting to tell you that there are many, many issues here. Remember that I have only given one speech and I have tried to put out a cameo approach to many of the issues. I have carefully avoided the substance of the case itself and the merits and the facts of the case because I want senators to look at the wider principles. The point that I am making is that these issues are commanding Parliament's attention. One cannot sit here as a senator and be silent on these questions while the debate is raging out there in the public domain and while every talk show in the land is talking about it.

In addition, honourable senators, it is a dangerous situation in a country when you have an altercation between two judges or some judges, and the public is polarizing on one side or the other.

I am trying to say: Let us begin to bring this more and more into our cognizance. Senator Grafstein, I suspect that the reason you asked the question is that you have an answer, because you are a very smart lawyer and you never ask questions unless you already have the answers to them.

Senator Grafstein: Honourable senators, I did not mean to provoke a debate. I will undertake to take the adjournment in my name and I will try to answer my own question because I do not think the honourable senator's answers have been responsive.

Senator Cools: The honourable senator has raised profound questions. These questions are now coming forward and the truth of the matter is that many have no answers. That is what I am trying to say.

Hon. Noël A. Kinsella, (Acting Deputy Leader of the Opposition): Honourable senators, the custom here is that we hold off on further questions of the speaker. I should like to have some questions raised for clarification.

In the preamble, Senator Cools used the terminology "feminism" and "feminist judge." I wrote down the phrase that, "feminists have entrenched their ideology in the Supreme Court and have hijacked the Supreme Court."

To help me understand the honourable senator's thesis, could she provide me with a definition of "feminism"?

Senator Cools: Honourable senators, if I knew what it was, I would be happy to tell the honourable senator. I only use the descriptors that people use themselves. I can tell you that when I use that term, I try to be specific. I try to differentiate between when I use the term as gender feminist and equity feminist. I would describe myself personally, for example, as an equity feminist. I would say to you that I sincerely believe that all women are equal and that women should have every opportunity that is available. That is why I introduced the word "gynocentric."

However, honourable senators, one could take the other view. I happen to have in my hands an article from The Toronto Star, February 17, 1992, the headline reads: "U.S. Feminist applauds Canada's rape-law plan." Here, again, there is an interview in The Toronto Star where Catharine MacKinnon said:

"In the context of unequal power (between the sexes), one needs to think about the meaning of consent - whether it is a meaningful concept at all," MacKinnon, 44, said in an interview from the federally funded Women's Legal Education and Action Fund (LEAF) symposium in Ottawa.

I am trying to tell you that I do not believe that these terms are commonly understood anymore. I am sure that they are no longer widely agreed upon and, obviously, some debate is very necessary. I can tell you, honourable senators, that I sincerely believe very strongly in the independence of women. I pride myself as being one. However, ideology and law do not mix very well. That is my point.

When certain persons make assumptions about human relationships and couch them in ideological terms, that is where I come into conflict or variance with them.

The second statement that Senator Kinsella asked about concerned the entrenchment of feminism in the Supreme Court. Those were the words of Mr. Greenspan. As I am sure the honourable senator knows, Mr. Greenspan is one of the preeminent criminal lawyers in the country. The reason that I brought that to us today is to show the debate as it is occurring in every newspaper and on every radio program across the land. Something is happening out there.

Senator Kinsella: Honourable senators, I only knew of this debate as the proceedings began this afternoon. There has been no setting up of questions. However, the responses we receive from Senator Cools simply demonstrates how well-researched her material is.

I will ask the question a different way. The honourable senator tells us that that statement comes from Mr. Greenspan. We are to understand that feminism "has entrenched its ideology in the Supreme Court." Is that a good thing or a bad thing?

Senator Cools: I see life more the way Mr. Greenspan sees life. We have inherited a splendid system and set of principles that were the jewel of the world, namely, parliamentary democracy, responsible government and independence of the judiciary.

We should stay on our ground as politicians and parliamentarians, they should stay on their ground as judges.

Senator Prud'homme: Hear, hear!

Senator Cools: We decide issues of public policy and they decide issues of law. That is the fine system that I love and I will defend. I view myself as a soldier of Parliament.

On the other question of women, I feel very strongly that women have so much to contribute and that women deserve every freedom that any man has ever had. Quite frankly, in life I have insisted on taking them. I pride myself and I thank God for my own parents and I thank God for my own mother. When I was a child she told me that I should be an independent spirit. She used to call me Peter and she would say to me, "Pete, if you see the herd running that way, stop, the herd is usually wrong. Never join the herd."

All I am trying to say, Senator Kinsella, and I have raised these questions many times, is that there is something very wrong going on in this country and there are many issues that are needing attention and there are certain issues that are needing correction. Let us look at them because I tell you, the hundreds and thousands of people whose lives are being destroyed daily is so obvious that I do not understand how it does not just hit everyone.

Mr. Justice McClung was wrong, I believe, in writing his letter. I believe that judges should not do that. However, I must deal with the fact that every single day, when I open up the newspaper, I see another headline of this or that judge making this or that pronouncement. Therefore, I wish to know why the rules apply here and not there. Is there a rule for the goose and another for the gander? The public mind is aware that there is something very wrong and they are looking for leadership. To my mind, on issues of public policy, Parliament should lead. If we do not bring these issues into our cognizance, the agitation in the public mind will reach a stage of being unmanageable. I put that to you.

Gender feminist ideology, I repudiate. I repudiate it strongly, I repudiate it as strenuously as ever I can. Imperfection lives in human beings. I do not know about any of you, but I am a sinner. I do not know about any of you, but I am deeply flawed. As far as I am concerned, morality and ethics and altruism are human characteristics that must be worked hard at to achieve. One just does not arrive at them or have them endowed because of one's gender. That is all.

Senator Kinsella: I am wondering whether the honourable senator would help me in this regard: In the various branches of our system of governance, we have a fairly developed set of rules that govern our debate and that might reflect upon members of the other place, as they too have traditions and regulations on issues coming up in that place affecting this house. Therefore, if we engage in this type of debate, what are the rules of propriety, or vanity or good order, that would help to define the parameters within which our debate would take place, particularly if the debate is focusing on the judiciary whose members do not reside in this chamber, obviously, and cannot, therefore, participate in the debate? In particular, what if individual members of the judicial branch are identified, ex officio or, indeed, individually or personally.

Therefore, I am curious, and thus my question to Senator Cools is: How can we engage in this debate in such a manner that the level of urbanity or the level of propriety is maintained so that we are not seen to be in any way diminishing the place of the judiciary in our system? This is very important.

Some might read the proceedings of this debate this afternoon and come to the conclusion, somehow, that the Senate of Canada is judge-bashing. I believe that phrase was used by Senator Cools. If there is a serious socio-political issue before us, we must define the parameters in which the kind of debate that Senator Cools referred to can be conducted so that we are not diminishing in any manner an important branch of our government, namely, the judiciary.

Senator Cools: Honourable senators, there are two things I should like to say. As far as I am concerned, we currently have an excellent system of rules which govern the rubrics and the processes by which Parliament should conduct itself. For example, my speech today was perfectly consonant with the rules that govern how we talk about judges and how we talk about protected persons and so on and so forth. Therefore, I would submit to you that we have a history and we have a process. All we need to do is reach out and use it.

Second, and I am not mentioning anyone by name, anything that diminishes one part of the system I sincerely believe diminishes the other part. Any time that we receive attacks or assaults or statements that diminish the Senate, I would add to you, those same statements at one and the same time diminish the House of Commons. I know it is not so popular these days, but it also diminishes Her Majesty the Queen. I could continue.

One of the sad absences in our community today is that we are seeing very little reaffirmation, renewal and upholding of a set of principles and a set of concepts that have served us well. Let us understand clearly, it would take an act of mischief, an act of imagination and fiction, and it is possible that all three of those could be combined, to believe that any mere discussion that we are having today is any attempt at judge-bashing.

I belong to the old school. I would be very reluctant to ever vote in this chamber to remove a judge because I think it is such an enormous and onerous thing, it is something to be undertaken rarely. That is why it has been undertaken very rarely. That is the purpose of onerous powers. They are to be exercised only under very certain conditions. I view myself as a defender of the independence of judges.

We have the rules. We must never diminish them.

Finally, I should just like to quote to you from Mr. Justice Lamer's speech to the Canadian Bar Association, August 23, 1998, in St. John's, Newfoundland. He was talking about judicial silence and he says:

But lately I have begun to wonder whether that tradition of silence continues to be appropriate. And my main concern is not for judges who are criticized in the press or by public figures. Rather, it seems to me that judicial silence sometimes means that the public misses out on a full understanding of what the courts are doing and why. Public debate on issues that come before the courts and, indeed, on the role of the judiciary itself is not as full as it should be because the perspective of the judiciary is usually absent.

This is the bench speaking. As far as I am concerned, this is what the judiciary is saying. They are saying that they want more of a role, as I understand this, in public debate. Being a politician and a full-blooded one, and I would add an able-bodied one, I do not see why I should shy from debate if they do not.

On motion of Senator Carstairs, for Senator Grafstein, debate adjourned.


The remainder of this day's Senate Debates available here.