Opinion: Chief Justice Richard Wagner forgets that criticizing judges is part of democracy
If legal commentators are permitted to scrutinize the reasoning of judges, then it is entirely legitimate for elected officials to do so, as well. After all, the rule of law mandates that each branch of the state remains within its allocated bounds. Where a court exceeds its proper constitutional role, or is in danger of doing so, then elected officials have a right, and a constitutional duty, to contest these uses of official power.
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Consider the case that provoked Premier Ford's comments, which involved a court challenge to his government's decision to remove bike lanes in some Toronto neighbourhoods. Whether or not their removal was appropriate, it is hard to conceive of bike lanes as a 'fundamental right' contemplated by the framers of the Charter of Rights and Freedoms. At best, the question is one of urban planning: a dispute over transit infrastructure, about which reasonable people can disagree. It is entirely consistent with Canada's constitutional order that these questions of policy should be left to the politically accountable government of Ontario. In discharging its unique constitutional role in our democracy, Queen's Park is entitled to assert its priorities over those of cycling advocates.
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Unfortunately, none of these considerations prevented Justice Paul Schabas of the Superior Court of Ontario from issuing a preliminary injunction, effectively stopping the government from implementing its priorities. In so doing, Justice Schabas summarily dismissed the elected branches' constitutional function, asserting that 'the government does not have a monopoly on the public interest.' Instead, the learned judge contended, it was for the court to exercise its own judgment as to which public interests the government could and could not pursue.
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Next, consider the numerous cases in which Canadian courts have struck down mandatory minimum sentences as unconstitutional, or departed significantly from public sentiment in sentencing criminal offenders. In one emblematic case, the Supreme Court of Canada declared a six-month mandatory minimum for child luring to be 'cruel and unusual punishment' contrary to the Charter, claiming that it would 'shock the conscience of an informed public.' More recently, the Provincial Court of British Columbia has been criticized for a decision to impose no jail time upon an offender who possessed what the court characterized as a 'relatively modest' collection of child pornography. In these circumstances, it is entirely unsurprising that officials and informed citizens should raise questions about the intelligent exercise of judicial power.
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A constitutional democracy that prizes our courts as forums of reason cannot have it both ways. It cannot profess public confidence in the judiciary, while insisting that judicial decisions be shielded from public criticism. Central to judicial responsibility is the task of offering reasoned justifications for one's decisions. Those reasons are an invitation to the public to examine and critically appraise the cogency of a judge's decision-making.
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There is little reason to think, then, that elected officials are acting inappropriately, much less unconstitutionally, in expressing reasoned disagreement with judicial rulings, or in proposing solutions to perceived problems with those decisions. To the contrary, such criticism is precisely what the rule of law requires, and bearing it with composure is a constitutional duty of the judicial role.
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