Judges shouldn’t be easy pickings for premiers

Complaining about judges is like shooting fish in a barrel.

Politicians can trash judicial decisions and the judges who make them until the cows come home, knowing that, except for carefully worded responses from bar associations and the like, there won’t be much in the way of a response.

Take Alberta Premier Danielle Smith: faced with a court decision saying that her government failed to properly consult with Indigenous groups about a separation referendum in Alberta, she simply announced: “the ruling is incorrect in law and anti-democratic.”

Thank you for your insightful legal analysis, Premier Smith.

Smith has gone so far as to say judges should be answerable to politicians.

“I wish I could direct the judges, honestly,” Smith said on a radio show, adding that she wanted the Alberta government “to have a joint process to choose those judges so we start choosing judges in Alberta that reflect the values of how we want them to operate here.”

Then, there’s Ontario Premier Doug Ford, who has called judicial independence “a joke,” suggested judges aren’t legitimate because they aren’t elected and went so far as to suggest publicly posting the names of judges that appeared, to him, to be soft on crime.

Both Smith and Ford miss the point of the judiciary.

Unlike political life, judicial appointments aren’t a popularity contest. And they shouldn’t be one. Nor should they be a means for forwarding any premier’s political agenda.

Those selected to be judges are there to use their broad skill and experience to analyze law and precedent, not to merely rubber-stamp the wishes of politicians, or, for that matter, the wishes of the public at large.

And on June 9, Supreme Court of Canada Chief Justice Richard Wagner made that point clearly at the court’s annual news conference.

“As in many other jurisdictions around the world, here too we have seen attempts to undermine public confidence in the justice system. We have seen judges and courts sometimes portrayed as partisan actors or described as obstacles to the will of the people,” Wagner said.

“The public deserves a judiciary that rises above politics. A non-partisan judiciary, insulated from politicization, is essential to the rule of law. Public confidence depends on judicial independence being both real and visible. We have seen in other countries what can happen when the boundary between the executive and the judiciary becomes blurred. The consequences are serious and often difficult to reverse.

“Criticism and questioning are, of course, part of a healthy and essential democratic process. But rhetorical attacks that cast doubt on the legitimacy of courts or judges can undermine the justice system as a whole.”

Judges have a single job: to make decisions based on existing law, without considering public reaction.

That’s because they don’t make the laws. Politicians do. Judges are the stop-gap that makes sure that law is applied as it is written — the letter of the law — and not simply as it is interpreted by self-interested politicians.

We have legislative, executive and judicial branches of government for good reason — and if democratically elected politicians want to change laws, they have the tools to do so. They don’t, however, have some magic veto power over the courts.

Imagine you were wronged and forced to sue a provincial agency, only to have a provincial premier tell the court how it would rule, based on that premier’s interpretation of how its decision reflected a province’s “values.”

See the point?

“A non-partisan judiciary, insulated from politicization, is essential to the rule of law.”

It’s worth repeating and worth remembering.