Shushing the Chief?

In his article “Judges Shouldn’t be Muzzled,” published yesterday in the National Post, David Asper countered an earlier editorial that criticized the statements of C.J. McLachlin for her recent speech delivered in Toronto to the Empire Club. Asper took issue with the underlying premise of the criticism:

It used to be that when a lawyer was appointed to the bench in Canada, he or she gave up the right to vote and to make public pronouncements on the issues of the day.

Asper was quick to point out that for sometime now, this has not been the state of affairs. Looking at several other speeches delivered to the Empire Club he points out that more then one other judge has addressed the club in the past on various issues.

What is of particular concern is that C.J. McLachlin was criticized when she was advocating for access to the justice system. While the role of Chief Justice is not something that is inherent clear to the layperson, or to the law student for that matter, as it isn’t exactly the sort of position that gets a job posting on the Canadian government website. One of the duties of the Chief Justice office in addition to responsibilities on the Canadian Judicial Council, National Judicial Institute, Privy Council, and advisory council of the Order of Canada, is acting as a spokesperson for the federal judiciary.

This special responsibility of the Chief Justice is something that C.J. McLachlin has herself mentioned in the article “Le role du juge en chef” (2002) 32(2) Revue generale de droit 403. In one of my previous posts, I tangentially raised the cost of litigation as a deterrent to Canadians accessing the judicial system. It was on this issue of costs that C.J. McLachlin was speaking, when she came under fire from the National Post editorial on Saturday March 10th. The fulfillment of the spokesperson duties of the office of Chief Justice is one of the more challenging aspects of the job. It saddles the Chief Justice the difficult task of speaking on various issues related to the judiciary and justice, whilst all the while maintaining the impartial nature of the judiciary.

If there are problems arising in the judiciary, who better to provide an informed decision but the judges themselves? In raising concerns about the ability of the middle class to access the justice system and the long delays in the court system, C.J. McLachlin was in fact doing her job. It seems that those leveling criticism are not fully informed as to the full duties of the office of Chief Justice.

In his defence of C.J. McLachlin, Asper concluded his article with an intriguing point:

Given the Supreme Court’s recent decision in the Chaoulli case, in which the court concluded there was a limit to how long the government could force patients to wait for public health care, it is worth asking: Have we reached the same point in our courtrooms?

However, when it comes to our courtrooms though there is an inherent conflict in our judiciary ruling that the government must somehow address the delays in our judicial system in any manner other then certain cases being thrown out. This conflict makes the spokesperson duties fulfilled by our Chief Justice of even greater importance, as it is the only acceptable means by which other branches of government can be pressured to act.