|JHSA - The Reporter||Fall 2006 Edition|
Canadian Judges are amongst the most respected in the world, and with good reason. Because Canadian Judges daily uphold these principals regardless of public sentiment or political acquiescence to such public sentiment. Indeed, it is their sworn duty to uphold these principals – a duty which they take very seriously.
Yet daily we are inundated with messages from the mass media that, directly or indirectly, impugn our Judges for doing the very thing they are sworn to do. Further, we see more and more that some elected representatives, all of whom ought to know better, are taking up this message and demeaning our judges and the court process.
Why is this happening?
As we have indicated in previous issues, we believe that this arises in large part from a fundamental misunderstanding of the role of our Courts, Judges, and criminal justice process. Either that, or it arises from a fundamental disagreement with this role, and a view that the role ought to be something other than what it is – and if it is the latter, that is even more disturbing than if it arises from ignorance.
Our democratic society is based on a tri-partite form of government; each of the 3 arms of government have certain powers and responsibilities, with each "balancing" the others, so that no one arm gains ascendance (and thereby complete control) over the others. Thus we have the Executive Branch (Cabinet), the Legislative Branch (Parliament & the Legislatures), and the Courts. But Federally, what has happened over the course of the last several decades is that the power and control of the Executive Branch has grown ever greater and at the same time, particularly since the 1980s, not only have we seen a diminishing in the power of the House of Commons, but also in that of the Senate – that other Parliamentary body charged with putting a brake on an overzealous Executive that controls the House of Commons.
At the same time as we have seen this shift in power and control from Parliament, in the form of the House of Commons and the Senate, we have seen a rise in attacks on the Senate for endeavouring to do that which it is charged, by our Constitution to do, and attacks on the Judiciary, who are charged with upholding the Rule of Law, and with protecting the rights and freedoms of all citizens – even those citizens that have been accused of committing crimes.
Indeed, more than in any other instance, the role of the Court is to ensure that the fundamental rights and freedoms of the accused have not been abused by the Executive Branch or its agents, and that any person charged with an offence under our Criminal Law is not convicted unless there has been due process and proof of guilt beyond a reasonable doubt. Further, and upon a conviction, the Court is charged with passing sentence according to law, which law is found in the Criminal Code in ss. 718 ff., and in the common law.
It’s clear that a (vocal) segment of the population is driven by fears (and anger) that are not grounded in fact.
Our legislators are responding to this (apparent) fear in the public, by proposing legislation that they hope will allay those fears; legislation that will have no effect in reducing the anti-social activities that give rise to these fears. Further, they have responded by demeaning our institutions that are operating on a basis of law and fact – primarily the Courts.
Our Leaders would be well advised to consider the words of John F. Kennedy, spoken at his Presidential Inauguration in 1961:
By proceeding on the present course, our Leaders are not, we would respectfully submit, "leading" – they are following. The time has long since passed for our Leaders to stand up to public pressure to do the expedient thing, and instead to do the right thing.
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