I was reminded of that situation when I heard Stephen Harper spoke to party faithful and told them:
"Imagine how many left wing ideologues [the Liberals] would be putting in the courts, federal institutions, agencies, the senate".
Stephen Harper suspects he is going to lose a major court battle. And so he felt the need to slag Canadian judges as "left wing ideologues". That way, like the client who lost a case, he preemptively shifts the blame. It is the politics of division and demonization applied to courts and judges.
Of course, also like the client who lost the case, the blaming of judges is wholly bogus.
Canada has an enviable tradition of judicial independence dating back to the earliest days of the British settlements that would become Canada. Canadian judges are consistently, and rightly, held in high regard by the public.
But part of the role of judges is to make tough and, sometimes, unpopular decisions. The very reason we have judicial independence is to allow judges to make those difficult decisions.
Since the patriation of the Constitution in 1982 judges have had to supervise the Federal Government and hold it to the standards of due process and fairness set out in the Constitution. If there is legislation or a governmental action contrary to the Constitution a Court is obliged to find the legislation or act invalid. When judges hold legislation invalid as breaching the Constitution they are not usurping power from Parliament but rather applying the fundamental law that governs Canada and indeed creates Parliament itself.
But some see the application of law as being somehow illegitimate.
So, a few years ago, Stephen Harper said "I share many of the concerns of my colleagues and allies about biased 'judicial activism' and its extremes. I agree that serious flaws exist in the Charter of Rights and Freedoms, and that there is no meaningful review or accountability mechanisms for Supreme Court justices." (Stephen Harper, Globe and Mail, June 13, 2000). At least Stephen Harper's attacks on judges have the virtue of consistency.
Especially now there may be good reason for Stephen Harper to try to paint judges as being mere puppets of ideology. The Khadr case is finally coming to an end.
On November 13, 2009 the Supreme Court of Canada will hear the case and likely require the Federal Government to ask for the repatriation of Omar Khadr.
Such requirement is both distasteful and embarrassing for the Conservatives. It's easier to blame the Courts for being biased than to face up to the fact the case shouldn't have been fought.
It's easier but it's wrong.
3 comments:
Excellent post James!
This is the whole point isn't it? The ideologue at work here is no left-winger; it's Harper himself. Increasingly, I see him as a modern-day western Duplessis, (one who wants unlimited power in the Prime Minister's hands) ...as long as that PM is him.
"Canadian judges are consistently, and rightly, held in high regard by the public. "
Do you listen to radio at all? In Vancouver it would seem judges aren't held in such high esteem.
Sorry to tell you this but judges are human and as such are inevitably biased to some degree. The fact that two judges can come to different conclusions, as in appeals court, demonstrates that. The level of bias is debatable but that judges are influenced by it is not.
Liberals appoint judges in line with their views and so do Conservatives. Shocking, I know. Judges have political ideology, all we need to do is look at Justice McLaughlin saying that judges are above the written law, that they must impose some sort of unwritten universal justice to see that.
Frankly, only Liberals who have appointed the judges for 13 years could think judges aren't biased. That has more to do with Liberals believing they are the only true Canadians and those who dare dissent aren't than with objective reality
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