Judicial Cynicism, Or Why Canada’s Chief Justice Should Retire

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Canada’s Chief Justice Beverley McLachlin

by Jack Locke

The recent Supreme Court of Canada chief kerfuffle, or Chief Justice hoo-hah, whichever way one prefers to describe the scandal over an errant phone call to Justice Minister Peter McKay—who acted as apparatchik to Prime Minister Stephen Harper—is one of those rare instances where ordinary taxpaying Canadians get a slight insight into the closed door machinations of power.

When judges and politicians schmooze, it demonstrates a repugnant aspect of Canadian law, an example of back-room consultations, trial fixings, that only brings the judiciary into disrepute and for me it brings back déjà vu.

There can be nothing worse than justice perverted, yet, it is the risk one takes when one enters the cauldron of jurists. Plaintiffs beware.

The year was 1993. It had taken me four years to come to trial on a matter that was simple: a little challenge to a City of Calgary by-law. After slogging my way through Alberta courts, from the Court of Queen’s Bench up to the Court of Appeal and then back to the C of QB, I was granted the right to have my day in court. But the signs blowing through the corridors of judicialdom were dark and ominous.

Ten days before trial, the city’s capable barrister Cunningham called me up.

Jack, he said, if we cannot agree on a procedural matter we will have to go before Justice Montgomery. The memory of his words stick to my ears as if said yesterday.

Justice Who? I enquired.

Justice Montgomery, he replied.

Who’s that? I asked.

You know, the judge who will be the trial judge. You knew that, didn’t you?

No, I did not, I informed him sternly.

I had tried to find out who the trial judge would be in advance so that I could prepare for the particular perspective of the courtroom maven. But I was informed it would be inappropriate to disclose in advance who the trial judge would be. Right, I concluded, the courts must be fair.

I then asked Cunningham, How did you find out?

Someone in our office left me a note, he said sheepishly.

Oh, I see, I gulped, realizing that the city had an “in” into the inner workings of the courthouse. Nice. And maybe, just maybe, that staff member who left the note for my adversary may have been in communication with Justice Montgomery, I surmised to myself. It was with this as a preface that I headed into battle that would become a seven day trial.

So, when I hear that the Chief Justice of Canada has communications with the Minister of Justice, or the Prime Minister, I am not surprised—but I am disgusted by it. I am equally disgusted by the follow-up displays of pseudo-righteousness that attempt to hide the dishonesty that floats through the phone lines between the Supreme Court and the House of Commons.

This past week I attended an event in Montreal, where McGill University’s Dean of Law Daniel Jutras occupied the first ten minutes of the event in an effort to persuade high school students and their families that the shenanigans in Ottawa were not improper and that only politicians should be reprimanded for suggesting inappropriateness by the Chief Justice. Why should a dean of law get involved in squabbling amongst the high-polloi? The association of law deans, of whom Jutras heads, sent out a press release in support of the Chief Justice. They wanted to assure Canadians that we commoners must maintain confidence in our broken system of justice.

I don’t recall Jutras disclosing, in either the press release nor at the high school moot court that he has a fairly close relationship to the Chief Justice himself. I must have missed that part of his diatribe against the Prime Minister.

In closing, it confirms my long-held belief that there is no rule of law in Canada, just a group of carpetbaggers who run the show for their own profit and interests.

 

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