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Speech in Senate Chamber: Senator Cools speaks to her inquiry on the role of the Canadian Judicial Council and Alberta Court of Appeal Justice John Wesley McClung, the principles of judicial independence, and the proper role of Parliament in relation to the judiciary.

Hon. Anne C. Cools rose pursuant to notice of Thursday, March 18, 1999:

That she will call the attention of the Senate:

(a) to the letter to the editor in the National Post, March 13, 1999, entitled "Fair Hearing," written by British Columbia Chief Justice Allan McEachern, the Chairperson of the Canadian Judicial Council's Judicial Conduct Committee, responding to the March 10, 1999 National Post's editorial "Hardly Impartial" about Mr. Justice John Wesley McClung, Madame Justice Claire L'Heureux-Dubé, and the Canadian Judicial Council;

(b) to the continuing public controversy about Alberta Court of Appeal Justice John Wesley McClung, and Supreme Court of Canada Justice Claire L'Heureux-Dubé, and the media reports of same;

(c) to the interview and the comments of Chief Justice Allan McEachern as reported in the Lawyers Weekly February 26, 1999 article "Judges Must be Cyber-Warriors";

(d) to the matter of justices' public statements in the media; and

(e) to the concept and principles of judicial independence and to Parliament's rights in these matters.

She said: Honourable senators, I rise to speak about British Columbia's Chief Justice Allan McEachern's letter to the editor of the National Post, March 13, 1999, entitled, "Fair Hearing" about the Alberta Court of Appeal Justice John Wesley McClung and Supreme Court of Canada Justice Claire L'Heureux-Dubé matter, and the Canadian Judicial Council.

Chief Justice McEachern is the chairperson of the Canadian Judicial Council's Judicial Conduct Committee and an important and capable judge. Chief Justice McEachern's letter states:

More important, though, Chief Justice Lamer does not participate in the consideration of complaints against judges of his or any other court. Indeed, the council's bylaws prevent it in all cases except where he believes his participation is required in the public interest. Even in such matters, he would, after considering the public interest, probably disqualify himself if his participation would create a reasonable apprehension of bias.

Honourable senators, Chief Justice McEachern is a fine judge, and a fine man. However, the fact is that Canadians expect their justices to be judges and not politicians.

Our principles and Canadian parliamentary responsible government democracy have maintained that justices' participation in public and political controversy is undesirable and forbidden. Public posturing by justices is objectionable. That many good justices are now compromised and in a terrible position is the making of some judges. This is a new and current problem, a post-Charter of Rights and Freedoms problem.

The current problem of judicial activism is best understood by pondering former prime minister Pierre Elliott Trudeau's mature, retrospective reflections on the Supreme Court decision in the 1981 Patriation Reference.

In 1991, at the opening of the Bora Laskin Law Library at the University of Toronto, an insightful Pierre Trudeau spoke about this decision and its constitutional, legal and political problems, and the role of the Government of Quebec. He told us that had the Supreme Court not played politics and had given a legal decision to which Canadians were entitled, and not a political one, that:

. . . Canada's future would have been more assured.

About the role of the Supreme Court in this decision, Mr. Trudeau said:

. . . it is not a role to which a court of law striving to remain above the day-to-day currents of political life should aspire.

Mr. Trudeau gave us a solemn and ponderous criticism of the court, saying:

. . . they blatantly manipulated the evidence before them so as to arrive at the desired result. They then wrote a judgment which tried to lend a fig-leaf of legality to their preconceived conclusion.

Amazing words for a former prime minister, ". . . a fig-leaf of legality to their preconceived conclusion."

Honourable senators, Chief Justice McEachern's letter offers his reassurance to the public of the justness, process and proper form of the Canadian Judicial Council, but his letter itself is not in proper form.

Understandably, he seeks the public's confidence in his integrity and in the integrity of those members of the Judicial Council who examine complaints. He asks for public confidence in Chief Justice Antonio Lamer. However, the problem eludes him. The problem is that that very confidence and trust which he seeks, a trust on which the system is founded, has been undermined, and has been undermined by some justices themselves in their unrelenting and persistent forays into public policy and into politics.

Further, his own public letter compounds it and consequently prompts my response. Chief Justice McEachern proves that something is very wrong in the judicial condition of Canada, and that something is needing correction. Chief Justice McEachern's letter exacerbates the current confusion about the difference between principles and interest, and between the legal, the judicial, and the political.

Honourable senators, I turn now to the judicial condition in Canada. Judicial activism has been aggressive and dominant for the past decade. Justices have galloped into every aspect of public policy, displacing and replacing parliamentarians as decision makers of public policy and as determiners of the public interest. Judges have become judicial lawmakers, even dispensers of the public treasury, and have charged millions of dollars to taxpayers in disregard of the principle of accountability of the public treasury to Parliament for public expenditures, and in disregard of the principle of the consent of the governed. Some judges have made themselves judicial legislators, supreme parliamentarians - all without accountability.

The cause of this controversy which burst into national consciousness is the fact that many justices have exceeded their proper constitutional limits, their proper judicial limits, and have used the Charter of Rights and Freedoms and other ideologies to take over political and parliamentary ground. Having aggressively moved onto political ground, they cannot now plead mercy or exemption from the consequential political, public and journalistic fallout on the grounds of being high court justices. Neither can they plead confidence in this judges' or that justices' personal integrity. The problem is in the judicial condition of Canada. Judicial activism has been vigorous in family law and in criminal law, and has reshaped Canada in the vision of the reshaping justices. It is this judicial condition that has given rise to the current situation of Justice McClung and Justice L'Heureux-Dubé.

Honourable senators, here, on March 4, 1999, I said that Mr. Justice McClung has had many judgments assailed by the Supreme Court. In one of these, the 1996 Vriend v. Alberta, Justice McClung said at page 619:

As I have said, none of our precious and historic legislative safeguards are in play when judges choose to privateer in parliamentary sea lanes. . . . Judicial restraint in the use of legislative power is not a fresh topic.

Justice McClung speaks of the piracy of judges in Parliament's business and its consequent erosion of the body politic to the institutions and to justice itself. As a senator and a member of Parliament, I have a special role in the superintendence of the behaviour of justices. It is my bounden duty to uphold the independence of justices and to protect justices from personal or political attack. I believe that justices must uphold the same principles.

I note that when Justice McClung's decision in Vriend was before the Supreme Court, it was assailed. I note that the Alberta government's lawyer, John McCarthy, was treated quite harshly. On November 4, 1997, in one statement by Justice Frank Iacobucci to Mr. McCarthy during his submissions, Justice Iacobucci said, as recorded at page 115 of the transcript:

We are taking from all of this that there is a new doctrine called the McCarthy Doctrine, that statutory non-feasance is not covered by the Charter.

The "McCarthy Doctrine," named after the Alberta government's lawyer, counsel for Alberta's Attorney-General, counsel for the people of Alberta.

Honourable senators, on judicial activism, I note in today's Ottawa Citizen an article about a speech by Justice Iacobucci entitled "Supreme Court judge defends judicial activism." I shall speak to this matter in the future.

Honourable senators, the Supreme Court led in this judicial activism, claiming the Charter as its command, and using it as both shield and sword. Chief Justice Lamer's public media pronouncement declares that Parliament commanded this. Some clarification is needed. The Charter made no such command. Further, Parliament did not order, intend, or even anticipate that the courts and the justices would engage as they have. In fact, the forays of justices into the legislative function, complete with judgments and inevitable negative consequences, can only be described as a judicial coup d'etat. This is a judicial usurpation of legislative power and function. It is a diminution of Canadian citizens' representative rights in public policy. It is constitutional vandalism.

This consequential imbalance in the body politic, a pathology, lies at the heart of this controversy around feminist activist Justice L'Heureux-Dube's concurring judgment in R. v. Ewanchuk and its pointed attention on traditionalist Justice McClung. Many justices have succeeded in their judicial activism in the courts, sometimes with the support of certain politicians and attorneys general who have allowed the courts to become instruments of public policy while confident of their parliamentary party caucus disinclination to hold them responsible to Parliament.

In a speech to the Canadian Bar Association, excerpted in The Ottawa Citizen of August 27, 1998 in an article entitled "Curb the Judicial Godzillas," former Minister of Justice and Attorney General John Crosbie described this judicial piracy, saying:

. . . the judges in Canada are the godzillas of government with the legislative and executive branches becoming the Mickey Mouse of government.

With success on the bench behind them, many justices have carried this judicial activism beyond the bench and into public domain in the daily media, posturing and pronouncing. I note that Chief Justice McEachern attempts to uphold Chief Justice Lamer's role in the functioning of the Judicial Council. Chief Justice McEachern's magnanimity and fair-mindedness is worthy, but the public mind knows what it has been hearing and seeing, and the public mind is judging.

The public frequently sees and hears Chief Justice Lamer pronouncing publicly on public policy, even public bills. For example, in an August 29, 1997 Lawyers Weekly article, Chief Justice Lamer opined about a unanimous Senate vote on Bill C-42, 1996, as follows:

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

Now Chief Justice McEachern adds his own words about Chief Justice Lamer's interest to this current controversy. He raises Chief Justice Lamer's flag, as the trustee of the public interest. That is the problem; the public interest is a political concern, not a judicial one or a legal one. Chief Justice McEachern asks for trust, but his letter fuels the mistrust.

Honourable senators, Chief Justice McEachern, by his letter, achieves the opposite of his very good intention. The problem is this public political activity of Canadian justices, and that Canadians disapprove of it. Because of aggressive, often ideological activism, the proper relationship between Parliament and the judiciary has been disturbed and is now impaired and damaged. Within the judiciary itself, the proper relations between the justices themselves and their courts have been disturbed, as proved by this controversy. Inevitably, as a consequence of these impairments, the proper relationship between justices and litigants, justices and accuseds, has been disturbed. That is at the heart of the controversy. Is there justice for the citizen - an accused, a plaintiff, a defendant - in our courts and before certain judges? These questions haunt. Did the accused in R. v. Ewanchuk get justice in that case? Did activism, ideology, and ideological feminism have a role? If so, what role, and who answers these questions?

Honourable senators, Chief Justice McEachern's letter proves the public's awareness of its own entitlement to a proper functioning judiciary, impartial from ideological and other political crusades. The Judicial Council was created by the Judges Act, Part II, sections 58 to 65. These sections never contemplated current Charter activism, nor current ideological curial warfare on the bench or in the public. Those sections did not anticipate court judgments as ideological instruments or curial battles within judgments and within courts. The Judicial Council is an agent of the sovereign, the executive, not an agent of the people. It is the creature of two members of the executive, the Minister of Justice and the Chief Justice of the Supreme Court. Chief Justice McEachern's letter proves this.

The Chief Justice of Canada is a member of the Privy Council of Canada, and formerly was a member of the United Kingdom's Privy Council and is currently the Deputy Governor General of Canada, giving assent to bills in the Senate. The Judicial Council is and embodies the executive's and the cabinet's interest in the administration of justice. The Judicial Council does not embody the public interest or the public's representative interest, only the executive's interest in justices' behaviours. Parliament alone represents the public's and citizens' representative interest.

This was the political and constitutional raison d'être behind the Act of Settlement, 1701 and Canada's Constitution Act, 1867, section 99, which assigned that public interest that representative interest to Parliament, as against the executive's interest in the behaviour of judges. Section 99(1) reads:

. . . the Judges of the Superior Courts shall hold office during good behaviour, but shall be removable by the Governor General on Address of the Senate and House of Commons.

The Hon. the Speaker: Honourable Senator Cools, I regret to have to interrupt you, but it is six o'clock. Unless there is agreement not to see the clock, I will be forced to leave the Chair.

Hon. Sharon Carstairs (Deputy Leader of the Government): Honourable senators, I believe there is agreement not to see the clock.

The Hon. the Speaker: Please continue, Senator Cools.

Senator Cools: Honourable senators, the Judicial Council is not competent to adjudicate this conflict of judgements and ideologies between Justice McClung and Justice L'Heureux-Dubé or any other related complaints because the Judicial Council has no public representative role in the matter. Those provisions about justices judging justices are not consistent with judge's current Charter roles, political roles that some have assumed improperly. The Judicial Council as constituted and headed by Chief Justice Lamer does not represent the public interest in justices' relations to each other - only Parliament does.

Honourable Senators, as Mr. Trudeau said, Canadians have a right to expect judgements from judges based in law, not judges' subjective values, preferences or beliefs about the public interest.

In closing, I shall illustrate my point about the political nature of this controversy. I had said that judicial activism is rampant in family law and criminal law. About family law and the non-custodial parents, usually fathers, Justice L'Heureux-Dubé in her reasons for judgement in the 1993 Supreme Court case Young v. Young, wrote:

Thus, the role of the access parent is "that of a very interested observer, giving love and support to [the child] in the background." (Pierce v. Pierce), [1977] 5 W.W.R. 572 (B.C.S.C. in chambers), at p.575.

Honourable senators, no law ever enacted by this Parliament, or any common law, or any rule of law ever authorized the relegation of good fathers, post divorce, to the status of "observers" in their children's lives. Some justices have been interposing their own wishes on the country and have been ruling the country from the bench. A clear articulation in this vein was made by Justice John Wesley McClung, who has declined to join the activists, when, in his 1996 Alberta Court of Appeal judgement in Vriend v. Alberta, he wrote:

This is because of the spectre of constitutionally hyperactive judges in the future pronouncing all of our emerging rights laws and according to their own values; judicial appetites, too, grow with the eating.

Honourable senators, judges should not be cyber-warriors, nor warriors of any kind. Warring of all kinds is politics, usually bad politics.

On motion of Senator Carstairs, for Senator Sparrow, debated adjourned.

 

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