Open season on judges?

Over the last number of weeks there has been an unprecedented attack on our courts. 

The Prime Minister was not only critical of the Chief Justice’ of Canada’s role in the Nadon affair but made matters personal by impugning her judgement.

Anonymous Conservative MPs and Ministers attacked the Supreme Court through the media.

And now the the Ontario Crown’s offices has joined the fray with the Regional Crown and Ottawa Crown’s office accusing judges of mounting a brazen insurrection against the government.  Inflammatory and inappropriate language to be sure.

Last week I wrote about this issue in iPolitics – get a subscription – but you can read my article below.

Last week, in an unprecedented and bizarre public attack, the Conservative government called into question the integrity of Supreme Court Chief Justice Beverley McLachlin, Canada’s top judge. Prime Minister Stephen Harper’s office went as far to call her actions “inadvisable and inappropriate.”

The Canadian Bar Association, the Advocates Society, the Canadian Council of Law Deans and countless academics, politicians and practitioners condemned the prime minister’s remarks and called upon the government to correct the record and retract.

Mr. Harper hasn’t admitted what he did was wrong — that his baseless accusations risk bringing the whole justice system into disrepute. In fact, he may have inspired the same level of disrespect for the judiciary in at least one provincial Crown attorney’s office.

On May 5 — just days after the PM’s dust-up with the Supreme Court — the Crown Attorney’s Office in Ottawa filed written arguments in a court case challenging the constitutionality of the new mandatory victim fine surcharge legislation.

The issue of mandatory victim fines has been a contentious one. Historically, judges have had discretion to decide whether to impose a victim fine surcharge on an offender. In one of his first acts as justice minister, Peter MacKay doubled the fine and made it mandatory. So judges were denied the power to waive the fine in appropriate cases.

For many people convicted of an offence, a mandatory victim fine of even a few hundred dollars can represent a significant amount of money. The imposition of a fine as part of a sentence can represent an serious financial hardship for people already living on the margins of society.

In response, courts across the country have attempted to restore fairness to the sentencing process. Some judges order the mandatory fine but give impoverished offenders a very long time to pay.

In other instances, courts have found the mandatory fine to be unconstitutional — most recently in Ontario, where a judge ruled that mandatory victim fines would “disturb reasonable and informed people because it is disproportionate … It is a blunt instrument that is far too blunt to achieve any valid penal purpose.”

It was in response to a similar constitutional argument that a regional and Ottawa-based Crown counsel, on behalf of the Crown, followed the prime minister’s lead and launched an attack on the judiciary.

The Crown’s submissions alleged that, despite the widespread judicial criticism of mandatory fines, Ottawa judges were staging a brazen “insurrection”:

“Proof that (removing judicial discretion was necessary) to ensure the surcharge was imposed is the conduct of some judges since the amendments. Since the amendment there has been a brazen and very public insurrection against the surcharge. Indeed, some judges have expressly refused to impose the surcharge while others have imposed illegal sentences to avoid its application.”

Such rhetorical flourishes are inappropriate in this context. Let’s define terms. An ‘insurrection’ is a violent uprising against authority or government — rebellion, revolt, mutiny, sedition. To act ‘brazenly’ is to act openly in a shocking way without shame or embarrassment.

These loaded terms added nothing to the legal question to be decided — the constitutionality of the legislation. The Crown’s personal attack on the judiciary does not advance its ultimate constitutional argument.

Ontario’s Crown policy manual recognizes that a Crown must seek to bolster public confidence in the administration of criminal justice and goes on to describes the role of the Crown as ensuring “that the criminal justice system operates fairly to all: the accused, victims of crime and the public.”

So making claims about judicial “insurrection” does little to bolster public confidence in the administration of justice. It also does nothing to support a legal argument.

The Crown’s allegations fail to recognize that positions with which it disagrees — and courts across the country disagree with the Ottawa Crown’s position — can be litigated without resorting to personal attacks on judges who are unable to respond.

Our legal system may be adversarial’ in nature — but it should not be unnecessarily confrontational.

It simply can’t be that the Attorney General of Ontario supports personal attacks on the judiciary as included in the regional Crown’s written submissions; the AG’s office should repudiate the comments.

We shouldn’t be settling legal questions by attacking the integrity of judges. A vibrant democracy is only possible with a legal system that is shown proper respect. Needless attacks on the court are pointless — and undemocratic.