Wednesday, October 06, 2004

New Judges "They. Are. Zealots."

The headline in Canada’s largest distribution paper was bold, clear and weird. “They. Are. Women.” (Toronto Star, Tuesday, October 5, 2004). I hadn’t realized that this fact was in dispute. What else could they have been? Vegetables? Aliens? Stuffed puppets?

What is the point exactly? Did the Star once run a comparable headline for the appointments of Justices Sopinka, Iacobucci Major, Binnie or Gonthier pointing out the important and stunning fact that “They. Are. Men.”? It did not.

Why did it not do so? Because the appointment of male judges was on account of their abilities not their sex. That seems harsh but makes sense when you think that the coverage highlights the women’s sex more than their legal experience - - with one exception, that being Louise Charron, described as “a masterful Crown Attorney who married an Ottawa cop.” The others have rather little practical experience as lawyers - - not what one expects of the highest court.

The new female justices are part, we are told, of one of the most female represented high courts in the world. We are supposed to think this is great. I don’t. Frankly, I think it is pathetic that the sex of a person is the thing that gets everyone excited about these appointments.

I want judges who are excellent judges and bring impartiality, not political zeal, to the bench. I want judges who can assist in protecting citizens from the “juggernaut” of over-zealous rights not (as did Rosalie Abella) extol it. To have a judge describe rights and justice as a “juggernaut” and that as a great vision is, frankly, worrying.

Combine this high-school cheerleader view of law with others and the “razzle dazzle siss boom bah” kind of approach to rights theory would be just embarrassing if it were not so dangerous.

I hope that when the judges decided (as they have done some time ago) that the Preamble statement “Whereas Canada is founded on the Supremacy of God….” was really a dead letter, they also took a look at the phrase that came next - - “…the rule of Law”.

If we jettison the rule of law which includes a proper understanding of the necessarily limited role of the law in relation to the legislature, we shall not have “the rule of law” but the “rule BY law” and that threatens another principle in our hallowed Charter - - “a free and democratic society”.

So I hope that the new Justices will be good judges first and zealous legal engineers not at all. Legal engineering is for the lawmakers, not the law interpreters and that, in its best and strictest sense, is what good judging is all about.

Iain T. Benson ©