Supreme Court of Canada judges have been doing so much speechifying lately that the media have almost stopped reporting on it.  Unless you were actually present at the Canadian Bar Association’s Edmonton conference last August, you probably didn’t know that Madam Justice Claire L’Heureux-Dubé spoke there.  I learned about her speech by chance.  I don’t think there was a single word about it in any of the daily newspapers I read.

However, I did manage to get a copy of the text.  Boiling its 14 pages down to their essence, it said:
 

• 1.  The recent barrage of criticism of the Supreme Court by the media and politicians has not been confined to a polite discussion of the merits of the court’s decisions, but has degenerated into personal attacks on the judges.

• 2.  This vehement criticism threatens the court’s judicial independence.

• 3.  The critics are wrong when they accuse the court of "judicial activism".

• 4.  Lawyers should rally around the court and explain points 1, 2 and 3 to the media and the public.

These complaints really deserve a 14-page reply, but I’m going to tackle them in two.

Justice L’Heureux-Dubé repeatedly characterised the court as hapless "messengers" who get shot merely for bringing unpleasant messages.  "The debate," she says, "…sometimes degenerates into personal attacks and accusations that judges are overstepping the proper institutional boundaries of their role."

Well, excuse me, M’Lady, I hope you won’t take this as a personal attack, but your statement confounds two very different phenomena.  Ridiculing someone’s intelligence or motives would be a personal attack and could validly be described as a degeneration of the debate.  It’s certainly not likely to generate either consensus or change. 

However, an accusation that judges have overstepped the boundaries of their role, and are acting as legislators rather than adjudicators, is an entirely different kettle of fish.  Far from being a degeneration of the debate, concerns of this kind are the very heart and soul of the debate about how this country is--or should be--governed. 

Admittedly, some of these accusations have been made in language that was less than deferential.  However, consider the critics’ frustration when, having published their concerns once or twice, they found that not only did the court keep engaging in what the critics regard as a usurpation of  the legislature’s role, it simultaneously kept denying that it was doing so. 

Now, adding fuel to the fire, Justice L’Heureux-Dubé’s speech identified those who even dare raise this issue with the mobsters and terrorists in foreign countries who intimidate judges via threats, torture and murder.   How is this supposed to make journalists feel, knowing that they have been mentally slotted into the same category as a bunch of avowed outlaws by one of the people charged with upholding their constitutional right to free speech?

We seem to be approaching a standoff--the Supreme Court versus a collection of outspoken critics--in which each side accuses the other of using intimidation to stifle opposing views.  But reflect a moment on the two sides’ relative power. 

Justice L’Heureux-Dubé’s speech listed the three criteria necessary to guarantee the independence of the judiciary:  "the financial security of the judges, the security of tenure of judges, and the administrative independence of the judiciary."  Nothing that any journalist or politician might say about the court has even the slightest impact on any of these factors.

Journalists, on the other hand, have none of these guarantees.  They make nowhere near the salaries of judges.  If they say things that offend too many readers, they can be fired. They have no guarantee that their editors will publish their articles unchanged.  Increasingly, they must be concerned about complaints to the human rights commission alleging that they’ve violated someone’s tender sensibilities.  They are often subjected to scathing criticism on the letters page.  And there’s the occasional anonymous phone call, e-mail or letter (yes, right here in Canada) that makes them want to keep their wills up to date.  Yet with all this, they are supposed to call it as they see it, just as judges are supposed to do.  Who do you think has the easier job?

The "judicial independence" argument has been advanced by Canadian judges with increasing frequency, but also with increasing inconsistency. 

Justice L’Heureux-Dubé, for example, quotes approvingly an American judge who said, "We do not administer justice by plebiscite."   Yet in February, 1998, the Globe and Mail  reported Justice Antonio Lamer’s public remark that he did not personally agree with the court’s position on abortion in the Morgentaler case, but had voted to strike down the law because he thought that was what a majority of Canadians wanted. 

Justice L’Heureux-Dubé herself does a double plebiscite when she states, "…most people would agree that it is appropriate for judges to make changes in the common law and the interpretation of legislation or the constitution when necessary, particularly to adapt it to contemporary values (emphasis added)."

Why does she feel it bolsters her argument to claim that most people would agree?  And whose values are supposed to represent contemporary values, if not the majority?

More on this next month.