JUDICIAL REFORM NOT JUST APPOINTMENTS

JUDICIAL APPOINTMENTS

Recent stories in the Globe and other newspapers about impending appointments to the Supreme Court and the Court of Appeal for Ontario (CAO) have raised the usual arguments about judicial 'activism' after the Charter and the political leanings of appointed judges - conservative or liberal. The more 'dangerous' topics of judicial integrity and accountability have largely been avoided.

The Globe's article (Supreme Court under scrutiny) did mention obliquely that under Madam McLachlin the Court had cut down appeals it heard by some 30-40% - surely a loss when this brings down the percentage of CAO cases which are heard to some 3%, making the CAO essentially a court without oversight or accountability.

It also mentioned that Mme. McLachlin's tenure has resulted in a court severely diminished in dissent and one in which judges have 'diluted' their positions to avoid controversy, making it a 'tame' court, which kowtows to power (presumably including powerful interests such as the federal bureaucracy). Gowlings lawyer Brown commented on how the court has given differences in appellate court positions the short shrift and how this is an 'intolerable' situation. How does all of this make Mme. McLachlin an 'able jurist'?

But the high profile of the Supreme Court notwithstanding, its actual influence is less than supposed. 'Justice' or 'injustice' as the case may be, is dispensed by lower courts, which are essentially limited to one level of appeal (the appellate court) for some 97% of cases in Ontario and similar percentages across Canada. That is the gaping hole in the Canadian system. In Switzerland for instance, a litigant is assured 2 levels of appeal.

What this means in practice is that the decisions of the Supreme Court can be set aside, distorted or simply ignored in the majority of cases by lower court judges using the age-old trick of inventing 'distinctions' between cases to avoid applying the applicable case-law. When the oversight is limited or non-existent, integrity suffers. Even if the appeal court in question is acting honestly, it will not examine the lower court's 'findings of fact', or consider that those findings may be falsifications.

There is no remedy for plaintiffs who are robbed of justice by dishonest judges who falsify facts, law and case-law. No lawyer would in any case even dare allege such criminal falsification. And a private individual who files an affidavit alleging and describing such falsifications will simply be ignored by the Supreme Court, and the Judicial Council will summarily shut-down the complaint claiming it is not a court, and inform the complainant that he/she is really only alleging 'error', thereby proving its bankruptcy - moral, intellectual and judicial.

Both the Supreme Court and the Council are of course chaired by the 'Chief Justice of Canada', currently Ms. McLachlin.

The mythology that judges are 'honourable justices' who never lie but may occasionally make 'noble' errors, is one of the greatest obstacles to justice, as dispensed in courts lower than the Supreme Court (that court's high profile and international scrutiny make falsifications by it untenable; its contribution to injustice is to deny worthy applications for leave to appeal without explanation). At best lawyers on the losing side of such injustice may claim 'bias' or a 'mockery of justice'. But such acts are really obstruction of justice by rogue judges.

The Council dismisses most complaints without investigation and operates like a private club with secrecy. It is really a public relations agency for judges, only tangentially concerned with justice. When the publicity from miscarriages became too intense, it publicly mourned their 'alarming incidence', but the corrective action it prescribed was only a 3-day course for judges, something akin to a band-aid for cancer.

The immunity from suit and liability that judges enjoy also emboldens this blatant abuse of judicial power, which our legal system pretends does not exist. The overwhelming majority of criminal miscarriages of justice took place before the Charter was put in place. Not a single judge responsible resigned, showing a distinct absence of judicial ' honour'.

The worst known case of miscarriage - Milgaard - was effectively 'whitewashed' by the judge conducting the public inquiry into it that no one except the Milgaard family wanted. The judge did however blame the victim's mother for delaying her son's release - she had to be punished for 'bringing the system into disrepute'. It is hard not to imagine that the Judicial Council broke out the champagne when the inquiry report came out; certainly they did not display any concern or outrage over this blatant cover-up.

The Council's dismal role in correcting judicial misconduct is clearly evidenced by the record. What is needed is the 'disbanding' of the Council - its 'smashing'- and its replacement by a new process where juries of citizens armed only with integrity and common sense hear complaints against judges, and are empowered to make recommendations - for discipline, damages, or even criminal indictments where judge(s) have obstructed justice. This will however be a sea-change, resisted by all the interests currently benefiting from judicial corruption.

The issues facing Canadian justice are not limited to the selection of judges - fundamental processes are in need of reform. Lawyer Raj Anand mentioned in one of the Globe's articles the need for reform to enable affordable access for minorities and others who are not 'well-heeled'.

Judicial independence was never meant to be freedom from oversight or accountability, let alone subservience to unseen interests. But that is what we may have. These matters deserve public debate and scrutiny, without which no reform is possible.