Monday, 16 December 2013

Judicial Rebellion or Judicial Intransigence? Public Policy and its Judges

On CTV’s Question Period this past Sunday (Dec 15), Ontario’s Colin Westman pontificated in high-minded philosophical terms about his (now) very public disagreement with the Conservative government's policy which mandates a victim surcharge be applied during sentencing. Westman decried the policy as targeting 'broken souls' and resulting in severe harms such as poor children not getting a pair of skates or mortgages going unpaid. The surcharge may very well be unjust and, indeed, may impose a substantial burden on convicted criminals who are not well-off financially; it may also be terrible public policy. The problem, however, is that this policy is now law and Mr. Westman is a sitting judge.

First of all I want to make it very clear that I speak as a member of the community and not in my capacity as a judge and I also speak simply for myself” noted Judge Westman as he responded to host Rober Fife as if the inclusion of that proviso somehow negates the inherently problematic aspect of an active member of the judiciary expounding his policy preferences on a very public forum. As a long-standing member of the bench, Justice Westman should know that his statement is simply absurd. Judges do indeed have private lives and have an existence apart from their public duty, but speaking in a public forum about his work in his capacity as a judge is beyond incredulous. Here Westman is on national television, explaining his actions as a judge while simultaneously claiming his views on the matter are his as a private individual. This is nothing short of asinine.

A judge's judicial role cannot simply be shed as a coat. So long as Justice Westman sits on the bench he cannot divorce himself from his role in such a cavalier fashion. His position is predicated on political neutrality, something that is vital for the integrity of his own decisions and, of equal importance, for the judicial branch as a whole. By weighing in on public policy, Westman brings both into clear disrepute. Certainly public figures can be interviewed; however when they are -- such as Chief Justice Beverley McLachlin, Governor General David Johnston or an Auditor General who occasionally relent to the press -- they remain outside the realm of politics and limited their responses as such lest their neutrality be questioned.

Judicial independence is an invaluable constitutional principle, one that ensures the ability of the judicial branch to act independently of the government without favour or interference. It is a vital corollary to the separation of powers. Politicians must refrain from meddling in the judicial process. Indeed, increasingly steps have been made to ensure that the both the fact of judicial independence and its appearance are maintained. The Director of Public Prosecutions, for example, separates the administrative functions of justice from the politics of the Attorney General while selections processes have become increasingly routinized ensuring that, while appointments are made by politicians, they choose from only qualified candidates. 

Judicial independence is not a single-sided entity. Indeed, it is based on reciprocity and predicated on the assumption that each branch of government -- legislative, executive and judicial -- knows its boundaries and respects them. Politicians must stay out of judicial affairs and, conversely, the judiciary must refrain from engaging in the political side, particularly in the policy process. Justice Westman's appearances on television simply exacerbates the fact that he has trod over these principles maliciously and willfully. 

This is further compounded  by the fact that, by ignoring what is extremely clear statute, the judge is himself breaking the law. Politicians make the law. Parliament, the sovereign expression of the democratic will of Canadians (and yes, the Conservative's majority in the House of Commons makes this unquestionably legitimate), has duly enacted a law. It is the job of the judiciary to enforce it. Full stop. There is no way to rationalize otherwise. 

The Conservative government is often berated for its 'extreme ideological' approach to the policy process. This accusation, quite obviously, ignores that reality that politics is inherently -- and there is no other way to put it-- political. For conservatives there is a public good in the surcharge. It is no more ideological than the claims of Justice Westman that there are social harms to the law. Ideology is often blind to itself and often cloaked in the virtuous and high-minded language of 'evidence based policy'. A politics without ideology is no politics at all. It requires debate and disagreement; it requires a weighing of costs and benefits (in costs for society and individuals). 

It is not enough for a judge to dislike a law or think it bad public policy. He must rationalize such a stance with recourse to the law and to questions of justice. If the law is ultra vires (here it obviously isn't) or unconstitutional, then a judge is clearly within his mandate to dispose of it. The example of mandatory minimums here is instructive. In that case bad policy was struct down, not because it was bad policy, but because a judge understood it to violate important Charter rights. In that case the court was forced to rationalize its decision. It didn't simply ignore the law but rather invoked legal principles and precedent, issued a written opinion and, as such, rendered itself accountable for its actions to the public.

As Justice Minister Peter MacKay noted: "Judges cannot ignore the role of the Crown in passing legislation in our democratically elected Parliament of Canada. Therefore, they are there like everybody else to respect the law, not flout it". Even if Justice Westman finds the law repugnant he is sworn to uphold it. Unless he finds a constitutional flaw in the provisions he needs to bite his tongue and enforce it. Part of the guarantee of judicial independence is security of tenure with judges holding office during good behaviour. Failure to enforce the law is anything but. Such a bold foray into politics is not judicial rebellion. It is judicial intransigence and shouldn't be tolerated, even by those who disagree with the policy.

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