by arthur Weinreb, associate Editor,
august 23, 2004
at last week’s meeting of the Canadian Bar association, the judiciary received advice on how to handle the media. One of the speakers was Peter Donolo, a one-time communications director for former Prime Minister Jean Chrètien. Like most former political hacks, he is now an executive with a research and consulting firm.
Donolo was quoted as telling the judges, "Judges could do a lot to improve their public image by occasionally giving the news media a glimpse into the human-interest story of who they really are and where they come from."
To begin with, the media are not just interested in the "human-interest story". While a story about how Judge X grew up in poverty with 20 siblings might make a nice piece for a weekend edition of a newspaper what the media really wants to know, as do other Canadians, is why they make the decisions that they do. In other words the media wants to hold the judges accountable.
If the media can hold the judiciary accountable, then the Canadian public should also be able to hold to account. If that’s what we are really interested in, then judges should be elected and not appointed. all Canadians can then question them. If judges holding public office are going to be put in the position of having to justify their decisions then all Canadians should be able to hold them to account.
although it is mentioned from time to time, it is probably not a good idea to elect the judiciary. Having a campaigning judge promise that he or she, if elected, will impose harsher sentences on shoplifters has always seemed to be an affront to our judicial system.
The Supreme Court of Canada and all provincial superior courts that make decisions that have an affect beyond that of the parties involved issue written reasons. and there is a plethora of legal experts, who are skilled at explaining the court’s reasoning to the media and the public. The media are not needed to learn why a certain decision was made. The media will end up asking judges, not for their reasons, but for their reasons for their reasons. There really is no need for that.
It is suspicious when a Liberal stalwart like Peter Donolo lectures judges on how to speak to the media. If someone were cynical, they might suspect that the judiciary is being encouraged to speak to the media to get the government off the hook. accusations are made that the courts, especially the Supreme Court of Canada, are too activist. The reality is that the courts end up making fundamental decisions on such issues as same sex marriage because Parliament refuses to deal with the subject. Then when the ruling comes down the government shrugs their collective shoulders and says, "gee, it’s out of our hands". The courts are being used by the government to enact legislation that the government wants to bring in, but leaves the court to do, because of potential political fallout. The system has built-in checks and balances such as the notwithstanding clause of the Charter of Rights. But we have a prime minister who would rather wage war against Iraq than override the courts.
The judges are being used as pawns to allow the government to escape responsibility for the way we are governed. Judges speaking to the media will only result in the judiciary taking the heat for what should be the responsibility of Parliament.