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Referees Don't Change the Rules, Mr. Lamer


Canadian judges have released a video as part of a campaign against critics of court political activism. In it, they encourage their colleagues to defend their recent inclination to make law, and overturn law, rather than simply uphold it. Mr. Leishman deftly skewers a key premise of their campaign.

Originally published in the London Free Press


Rory Leishman

 Author Notes

Freelance journalist, author of a weekly national affairs column for The London Free Press and Sun Media Newspapers in London, Ontario. Mr. Leishman's work also appears in various other journals, and he operates his own web site where others of his essays can be viewed. He can be reached via e-mail at rleishman@home.com.

 Essay - 5/12/2000

On April 13, the Judges Forum of the Canadian Bar Association marked Law Day in Canada with the release of Judicial Independence: What It Means To You -- a piece of video propaganda in which a bevy of prominent lawyers, law professors and judges denounce attacks on the courts.

The legal establishment has good reason for alarm. Since the Charter of Rights and Freedoms came into effect in 1982, the courts have come in for political criticism as never before.

In the Judges Forum video, former chief justice Antonio Lamer leads the judiciary in a vigorous counterattack. "If the referee in a hockey game blows the whistle and they say never mind, we are going to continue playing, the game is over. Its the same thing with the judiciary," he warns. "If there is no respect for the referee, even when you think the referee is wrong, then the game is over."

Lamer is right. The game of democracy and the rule of law in Canada are imperilled. Neither can survive if much of the public loses confidence in the integrity of the courts.

If the referee in a hockey blows a call, the players and fans will loudly complain, but they rarely question the authority of the referee because he has earned their respect. They believe he at least attempts and, for the most part, succeeds in fairly upholding the rules of the game.

Suppose, though, that a referee gets it into his head to change the rules. In defiance of the wishes of a majority of the players, fans and rule-making officials of the league, he decides to impose new rules of his own that in his personal opinion are more progressive, just and fair. How long would that referee get away with such arrogance?

The legal luminaries who put together the Judges Forum video should realize that the judges of Canada are coming under ever more serious political attack because they have abandoned their traditional judicial role. Instead of upholding the law as defined by precedents and legislative enactments, they now routinely change the rules of law to accord with their own personal political preferences.

"Perhaps so," retort the judges, "but the Charter makes us do it." That's nonsense. There is nothing in the language or history of the Charter to indicate that Parliament and the provincial legislatures intended this constitutional amendment to effect a wholesale surrender of their legislative authority to would-be Solons of the courts.

Yet under the pretence of upholding the Charter, the courts eagerly usurp legislative authority. A prime example is the case of John Ronald Sharpe, the British Columbia pervert who admits to the possession of child pornography.

In a shocking decision last year, the British Columbia Court of Appeal ruled that Sharpe has a legal right to possess such disgusting material by virtue of the guarantee of freedom of expression in section 2 of the Charter. In reaching this conclusion, the court defied Parliament, by striking down the specific ban on the possession of child pornography in section 163 of the Criminal Code.

The rights and freedoms spelled out in the Charter are not unlimited. They are subject, as section one of the Charter explicitly states, to, "such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society."

Who in a parliamentary democracy is responsible for setting those limits appointed judges? Most definitely not. Defining limits to freedom under law is, and always has been, before and after enactment of the Charter, a responsibility that properly belongs to elected representatives of the people in the legislative branch.

Majority rule is a hallmark of democracy. It's up to the elected representatives of the ever shifting coalition of minorities that makes up the majority in a legislature to define legal limits that apply to all citizens.

While the courts might overturn a law that has been duly enacted by Parliament or a provincial legislature in a rare and severe emergency, the presumptuous autocrats on the Supreme Court of Canada have taken to routinely striking down laws in favour of rules of their own devising on the most far-reaching and controversial political issues.

That's why Canadians are losing confidence in the integrity of the courts. That's why the game of democracy in Canada is imperilled. And that's why blame for this swelling constitutional crisis belongs not to critics of the courts, but to out-of-control judicial referees like Lamer.

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