Friday, June 15, 2012

Government by judges

Judges are amiable people. They make good golf partners and interesting dinner guests. As a group they are well educated, intelligent and polite.

But they are not legislators and are not the voice of the people. They have little or no training in sociology, philosophy or politics. Their task is to interpret and apply laws -- not to write laws.

And yet, despite 120 years of legislative consideration, a judge today held the legal ban on assisted suicide was improper. The judge decided that she, rather than members of Parliament elected by Canadians across the country, was better able to reform the law. Her view, standing alone, trumped that of Parliament.

Maybe legalizing assisted suicide is the right decision -- in fact, I am inclined towards it -- and if I am ever an MP I'd be interested in legislative reform. But legislative reform is a decision for Parliament, the elected representatives of the nation, and not a lawyer appointed to the bench for life.

A judge commissions no studies, hears no witnesses, save as called by the parties, and has no input from ordinary Canadians. A judge doesn't face voters every election and doesn't have to justify her decisions to the public. All that makes sense when applying the law as between two parties. But it makes no sense to have such an individual, without anything more, making new laws. Even kings have their advisers -- judges have none.

Parliament has repeatedly considered, and rejected, proposed changes to the law regarding assisted suicide. In recent years, Parliament has dealt with nine private member bills on the issue – three failed to gain any support, and six were debated in the House and voted down.

The issue does not pose an obvious infringement of a protected right or freedom. Only by stretching the meaning of equality and life or security of the person could the judge finesse a Charter breach (indeed, the Supreme Court of Canada found no breach only twenty years ago). Parliament has given the issue consideration. This is not a proper decision for the Court to make. The Court over reached.


diamondwalker said...

I made it to the end of your 3rd paragraph and stopped right there. I happen to admire your blog very much for a great number of reasons.. but.. I must point out that the BC judge in question, most likely is far better able to interpret, speak for, or reform the law, than our current parliament... or many previous ones.

If you asked me today, who I would most trust, to look after the future of my family, or of Canada.. I would choose that judge in BC ( a total stranger to me) over the Parliament of Canada, without hesitation. Who would choose Government by contemporary political animals over Government by judges ? These are not 'normal times' as I'm very sure you have noticed.

I know little about the judge in BC, except she is Canadian, almost certainly an exemplar.. to have risen to her position.. and she exhibits compassion and understanding for a woman and others like her, who's life is ending. Madam Justice Lynn Smith exhibits and espouses courage, empathy.. common sense.

If you can provide a shred of evidence that such capabilities exist within the current government, which dictates Parliament currently, I would reconsider my position and your worthy views.

You are caught in a desperate conundrum, sir. As are we all, in Canada. The dying woman. a Canadian.. is not bound to law in her dying.. nor to a parliament, most certainly not to the current parliamentary buffoonery and unethical actions of The Harper Government. The current parliament has only the single voice of Harper that is propagated via the hysterical Oliver, Del Mastros, Anders, Clements, Van Loan's, Mackay's et al.

Must we all drink from a poisoned well ? I think not..

I will not ..

Dan F said...

Hi James,
I have to go with judges too. A majority of MPs can be elected by a minority, and that minority can be determined to take away rights from the majority (or to refuse to grant them). Human rights should not be up to the whims of lowest-common-denominator populism - essentially mob rule. Judges are exactly the right people to make such important decisions. When it comes to the right to die, a basic human right, it is indeed something that should not swing back and forth like a pendulum with the whims of the population, (and electoral campaign attack ad teams). It should be decided by people who make their careers deciding such things. The people are still involved in the decision, in that the judges are appointed by elected politicians, so if they get too crazy, over time the system would correct itself, but I don't see that happening even with the current radical right-wing government. The checks and balances in the judicial appointment system ensure that even such an ideological ruling party can't impose too much change too quickly on the judiciary. They still have to be qualified.

James C Morton said...

Well, maybe you're right -- that's why I blogg -- to stir up thinking!!! I still think this should be dealt with by Parliament but - gosh -maybe I am on the wrong side of this one!!!

Anonymous said...

The problem with the first two commenters is that they forget it is the louts in parliament that select the judges.

While I respect that many dislike the current bunch running Ottawa I would suggest they are far better than the last crop.

I point out that it was a sitting Liberal PM who instilled fear that the opposition leader would stack the courts to destroy the rights of women and minorities.

It is a cynical view of the bench but Libs at that time certainly didn't protest it. You reap what you sow.

the salamander said...

your comments are well taken.. your position seems obscure tho.. and I don't mean to be critical M Anon .. but you're concerned about a previous government in a discussion regarding the health and peace of mind of a Canadian woman that you do not know ?

We are at a quandary if I'm not mistaken.. re 'end of life' as well as 'beginnings of life' and arbiters or stake-holders such as Justice Lynn Smith must step into the breach so to speak.. and they can't be considerate or forgiving of errors, crimes or accounting errors or religious outlooks of previous or current governments.. or agencies or agendas..

I did not catch compassion in your expressions.. regarding the health or situations of the litigants.. perhaps I missed it.
Are you suggesting these are her's or their just desserts .. or that they must reap what is sown ... ? (how biblical !)

I feel compassion, reason, common sense.. and medical care.. and community support are the immediate response here. I don't see where politics or politicians or biblical soothsayings offers much at all ...

We all need more advocates & exemplars...
and ideally .. less adversaries ...