CANADA

Judicial restraint

Should the courts heed their detractors?

SCOTT STEELE September 9 1996
CANADA

Judicial restraint

Should the courts heed their detractors?

SCOTT STEELE September 9 1996

Judicial restraint

CANADA

Should the courts heed their detractors?

He is no stranger to controversy. In fact, in 1991, B.C. Chief Justice Allan McEachern delivered one of the most hotly disputed rulings in the province’s recent history when he dismissed aboriginal land claims by the Gitskan and Wet’suwet’en people as being extinguished during colonial times—a decision that some native leaders denounced as racist. Last week, in a paper prepared for the 3,000 delegates attending the

Canadian Bar Association’s annual meeting in Vancouver, McEachern warned that judicial independence was imperilled unless judges remain steadfast in the face of such criticism. “As cases become more difficult, more numerous, and more socially sensitive,” he wrote, “public attitudes about the administration of justice seem to have changed, probably for the worse. This changed social climate creates risks that judges will be influenced, consciously or unconsciously, by extraneous voices.”

McEachern noted that the number of complaints against Canadian judges had been steadily growing, from five or six each year about 15 years ago, to about 200 each year now. Most of these complaints, which he blamed on special interest groups and “agendists,” amounted to little more than “disguised appeals against judicial decisions,” said McEachern, 70. And the rule of law will continue to be at risk, he argued, until political and opinion leaders, including the media, “start assuring the public that the judicial function is to decide cases fairly and objectively, according to the law and the ev-

idence, and not to solve society’s dysfunctions through legal decisions.”

Ironically, while McEachern was arguing that judges should not always listen to public opinion, social activist lawyers like Greg McDade, who represents such environmental groups as Greenpeace, say that their clients are similarly prepared to sometimes ignore judicial rulings. For example, Greenpeace has vowed to continue its campaign of civil disobedience against logging on the

West Coast—despite the Supreme Court of Canada’s recent dismissal of its argument that a sweeping injunction granted to MacMillan Bloedel Ltd. by the B.C. Supreme Court in 1991 was illegal. That injunction led to 856 arrests at Vancouver Island’s Clayoquot Sound—and 626 convictions for criminal contempt of court. Last week, Greenpeace representatives again appeared before the B.C. Supreme Court in an attempt to ward off yet another application for an injunction by the logging firm. That step was taken after protesters boarded a logging barge, the Haida Brave, in Howe Sound, north of Vancouver, in early August.

McDade maintains that Greenpeace protesters “are not showing any disrespect for the courts.” Instead, he said, “they are trying to show that the laws about forestry and logging are improper laws; they’re criticizing the legislature, not the court—and intend to continue to do so.” It seems that whether McEachern likes it or not, the court of public opinion has yet to adjourn.

SCOTT STEELE in Vancouver