Out in left field without a glove!

Here comes the judge ..... or does he?
Judges are above politics, Council says

By Gen McGregor
Thursday, September 29, 2011

OTTAWA — As Conservative MPs attempt to call a sitting judge to testify before a parliamentary committee, the Canadian Judicial Council is warning that judges should never have to answer to politicians.

The Conservatives on Tuesday used their majority strength on the House of Commons Access to Information and Ethics Committee to adopt a list of witnesses that includes Mr. Justice Richard Boivin of the Federal Court.

They want him to discuss his ruling in a case brought by the Information Commissioner against the Canadian Broadcasting Corporation. There is little chance Boivin will ever appear before the committee, but the mere attempt underlines the long-simmering feud between the judiciary and Canada’s conservative movement, which bemoans “judge-made law” and complains about the lack of judicial accountability.

The council, which supervises Canadian judges, says a key part of judicial independence is that they should never have to explain their rulings.

“Members of the judiciary do have a certain degree of immunity in the performance of their official duties,” said Johanna Laporte, the Council’s Director of Communications.

“The basic principle of that immunity is that judges should not be deterred from vigorously performing their jobs. Judges should never have to justify their decisions — their decisions basically speak for themselves.”

The committee is looking into the CBC’s handling of Access to Information requests.

The CBC was taken to court by Information Commissioner Suzanne Legault for restricting her ability to examine documents to determine if they can be released through the open-records law.

Boivin ruled in Legault’s favour, but the CBC has appealed his decision.

The Tories are angry about what they say is the use of taxpayers’ money — the CBC gets about $1 billion from the federal government annually — to fund the litigation against a taxpayer-funded official.

Boivin was named on the list of witnesses submitted by Conservative MP Dean Del Mastro, who is also Parliamentary Secretary to the Prime Minister. Del Mastro told the committee he felt it was “entirely appropriate” to invite Boivin to discuss his ruling.

“Judges are servants of the public. They uphold our laws,” he said. “This specific judge has looked at all the evidence before him, and he has rendered a decision. I think it’s important that the committee hears about that decision and why he came to it.
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Reached Wednesday evening, Del Mastro referred to the Supreme Court ruling and said if Boivin doesn’t choose to attend voluntarily, he will circulate a copy of the judge’s ruling to committee members.

The committee agreed that some of the witnesses, Boivin included, would not be called to testify until after the hearing of CBC’s appeal on October 18. An invitation went out to Boivin on Wednesday.

Boivin, 46, is one of the youngest judges on the Federal Court. He is a former Department of Justice lawyer and was named to the Bench by the Conservatives in 2009.

Unless he agrees to appear — which seems highly improbable — the committee could issue a summons or even a subpoena. Boivin could safely ignore either. The Supreme Court of Canada ruled on judicial independence in 1989, saying that federal judges had the right to refuse to explain their decisions to legislators.

Constitutional law expert Ed Ratushny of the University of Ottawa says he couldn’t believe the Tories would even try to get a judge before committee.

“It is so fundamental and clear cut that I can’t imagine how they could even consider it,” he said.

“It seems to me that it is really out of left field.” (emphasis ours)

Del Mastro also included on his witness list journalists working for Sun Media, the Quebecor Inc.-owned publishing and broadcasting company that has filed hundreds of Access requests to the CBC. Forcing journalists to testify would also be a highly unusual step.

A Quebecor official has said the journalists will not appear before the committee but the company’s president, Pierre-Karl Péladeau, will testify.