Judges form Canada's 'new priesthood'

Sun, April 4, 2004

By Ted Byfield

Whether ancient or modern, every human society, it seems, must have a priesthood, a cast of men or women upon whom is conferred a final, absolute, virtually infallible authority, particularly as regards morality and the law. It's essential for the credibility of this authority that it be duly and publicly respected, honoured, esteemed, even venerated. Those who belong to it must not be viewed as ordinary people. They must be seen as of a higher, nobler, more august order of humanity. Otherwise, of course, the commoners may begin to challenge their authority, to doubt their pontifications, to question that which must never be doubted. In our society, going back some 800 years, that authority was vested in the clergy. Then about 500 years ago, it was assumed by the kings, who ruled, it was said, by "divine right" -- meaning, not that they were necessarily right, but that what they said must be considered final, ultimate, the last word, the law. They spoke, that is, as if with the authority of God. Then about 400 years ago, this too began to change, and we developed what might be called "the divine right of the people," also known as democracy. Democracy was a brash and boisterous process, not at all lofty and noble, and it certainly didn't look very divine. But in terms of what it actually produced, it proved very noble indeed, and the kindest, most charitable and caring societies in the world resulted from it. Anyway, we should be conscious that we in Canada are about to take the next step. We are in the course of abandoning the "divine right of the people" in favour of a new priesthood, the priesthood of the judges. They are our new rulers and already they are working to endow their office with due nobility and divine decorum as the new magisterium. "Canadians appear to share a profound belief that when other institutions fail, one can count on the fairness of the courts," says one jurist who notes a "radical alteration in the public perception of judges." Judges are now "the servants of the people, in the highest and most honourable sense of that term. The judge has a task, a more important task than ever before." These words are those of Chief Justice Beverley McLaughlin, who extols the new priesthood in one of six political speeches she's made in the last three years, this one intended to caution judges against making political speeches. There were a couple of points about this new role for judges that the chief justice didn't get around to mentioning.

Point 1: The Canadian Supreme Court has taken upon itself the job of making laws. This task was not thrust upon it by the Charter of Rights; the court could have left gaps in the law for Parliament to fill. It is a clear usurpation of power. We are therefore now ruled by judges.

Point 2: Canadians have no voice whatever in federal judicial appointments which include, of course, those to the senior provincial courts as well as the federal courts. Though they will shape and effectively write laws under which we must live, we are allowed to know nothing about them until the appointment has been made. Their moral and religious views are kept secret from us. They cannot be publicly questioned.

Point 3: This makes us what amounts to an authoritarian state. We are no longer a democracy. One of the people who agreed something had to be done about this was Prime Minister Paul Martin, who in a speech at Calgary promised future judicial nominees would be examined publicly by a parliamentary committee. His pledge was immediately denounced by Chief Justice McLaughlin, who seems to perceive any public role in the appointment of a judge as a "threat to democracy." It's OK to elect members of Parliament, but heaven forbid that mere voters should play a role in determining who should occupy this august imperium. Thus the new priesthood. Two of the nine seats on the Supreme Court of Canada are about to be vacated. If Martin submits his nominees to a parliamentary committee, thereby defying this new self-appointed holy order, he will demonstrate himself an honest man. If he doesn't, he will demonstrate himself a phony