Judges not writing the laws: McLachlin

Chief Justice also argues against a vetted judiciary

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Wednesday, June 18, 2003

TORONTO - Fears that activist judges have usurped the power of politicians are "misconceived" and demonstrate ignorance of the judiciary's role in democracy, the Chief Justice of the Supreme Court of Canada said yesterday.

Beverley McLachlin said judges interpret laws, not draft them, and thus should not be held politically accountable for their decisions on such divisive issues as abortion, native rights and same-sex marriage.

She accused those who promote an elected judiciary of leading the courts toward a dangerous ''majoritarianism'' at the expense of democracy.

If judges were to be elected or face other political vetting, she said, they would fall under the influence of political parties and, as has been seen in the United States, temper their judgments according to their prospects of re-election or promotion.

"In a pluralistic constitutional democracy, majorities are not permitted to impose their moral values, their conception of the good life, at the expense of those who do not control political life," she said in a speech to the Canadian Club in Toronto.

"Let me urge that whatever changes we make [to the appointment process], we avoid politicizing the judiciary, and eschew the seductive yet pernicious tendency to merge the judicial and political roles."

The debate over judicial appointments has reached a turning point, she said.

The recent Ontario Court of Appeal ruling that allows gays to marry will give fuel to the commonly cited fear that judges are becoming unelected legislators, while the appointment to replace the retiring Mr. Justice Charles Gonthier on the Supreme Court will give immediacy to concerns about the selection process for the country's top judges, who are appointed by the prime minister.

A few hours after Judge McLachlin's speech, Jean Chrétien, the Prime Minister, announced the government will not appeal the Ontario court ruling. Instead, it will draft legislation to legalize same-sex unions and ask the Supreme Court to rule on its constitutionality before putting it to a free Parliamentary vote.

Professor Kent Roach, a University of Toronto law professor and expert on the judiciary, said the government's decision yesterday not to appeal or propose a different solution is a setback for advocates of elected, accountable judges, because the government appears to have "capitulated." Critics of the status quo have accused judges of reading into the law more than is there and using their own opinions to guide their decisions, while politicians stand idly by, he said.

Election for judges is often touted as a way to ensure the will of the people comes through in court decisions, but Justice McLachlin said judges should be unelected, "independent arbiters," who interpret laws within the constraints of the legal system that gives them their power.

"This activity of interpretation is more than simply deciding what these and those words mean," she said. Rather, it involves assigning meaning where it is unclear, applying straightforward laws to complex situations, harmonizing laws that appear to be in conflict, and determining whether challenged laws are constitutional.

"All this is high level, specialized, intellectual work," she said. "Contrary to public myth, judges do not pluck meanings from the air according to their political stripe.... The judge is more like a gardener, shaping and nurturing the plants so that they grow as intended, occasionally pulling out a weed that offends the plan on which the garden is based."

Justice McLachlin is considered one of the court's most legally conservative and independent jurists. She wrote the dissenting opinion -- that natives do not have the right to fish when and where they choose -- in the controversial Marshall case that expanded native fishing rights. She also wrote the 1991 decision that said the now-overturned "rape-shield" law treats men unfairly.

Prof. Roach said most judges would agree with her description of constrained power, but supporters of judicial reform cast doubt on how effective the constraints are, if there can be no consequences or accountability.

"Critics of judicial activism on all sides of the political spectrum say that that really underestimates the power that judges have to make the constitution in their own image," he said. "So what's coming through in judicial decisions, the critics would say, are the values of the judges as opposed to the values of the law."

jbrean@nationalpost.com

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