Judicial independence doesn’t mean being exempt from criticism – something that judges should keep in mind when responding to politicians raising systemic issues in the justice system. The courts are not a fragile flower.
Last week, the three chief justices of Alberta’s courts issued a statement on the importance of judicial independence, after Premier Danielle Smith had some pungent words on a podcast for the courts’ handling of bail issues, and for the judicial appointment process.
Ms. Smith’s words, at first glance, appeared to be concerning. “I wish I could direct the judges, honestly, Chris,” she said. She was responding to a caller, Chris from Edmonton, who pointed to the example of a man released on bail in a break-and-enter case who is now on trial on two especially brutal counts of second-degree murder in that city.
But before rushing to judgment – or to issue a public statement – consider the question that Chris from Edmonton asked: Why can’t Alberta write its own bail laws, rather than accept the federal ones? Ms. Smith’s response did not describe a policy to take control of the judiciary, and as we heard it not even a longing to do so. As she went on to say, Alberta did not have the legal jurisdiction, and could therefore not set the parameters for judges’ bail decisions.
Smith demands more say in Alberta judicial appointments
To point out the obvious: a government setting bail laws is, in fact, giving direction (albeit broad) to judges. And that is proper; otherwise the bail system would be beyond the reach of democracy.
Bail, she told the caller, is “a very complicated area of law mostly in the federal realm.” There was more, too, from Ms. Smith, including the revelation of a letter Ms. Smith sent Prime Minister Mark Carney asking for more involvement of Alberta in federal judicial appointments to that province. There are problems with Ms. Smith’s letter (more on that later this week). But the idea that she has seriously damaged public confidence in the courts is far-fetched.
Alberta’s senior judges are not the first to issue a kind of public caution. The three chief justices of Ontario published a statement last April after Premier Doug Ford called judicial independence a “joke,” and said it was time to start electing judges. Mr. Ford’s remarks were more or less a frontal assault on judges, and so the judges’ rejoinder was understandable. A month before that, U.S. Supreme Court Chief Justice John Roberts put out a statement after President Donald Trump called for the impeachment of a judge who ruled against the government in a deportation case. Chief Justice Roberts’ statement was an important defence of the judiciary.
Previously in this space we urged premiers to discover the virtue of silence, rather than seek to turn judges into political targets for their decisions. Premiers on both the left and right were piling on, giving the impression the courts were not acting with the public’s best interests in mind, and criticizing individual judges for their decisions.
Alberta justices emphasize independence in rare statement after remarks by Danielle Smith
But Ms. Smith was not attacking judges for refusing to take the government’s word for something. She was addressing a caller’s concerns about the bail system. (We do agree, though, that when she criticized the bail decision mentioned by the caller, she went too far.) The public’s unhappiness with the bail process is well-known, an unhappiness reflected in legislation now before Parliament, as the federal government attempts for the second time since 2023 to rewrite bail legislation in an attempt to prod judges to put a greater emphasis on protecting public safety.
The sensitivity of the courts to criticism has deep roots in English common law, with the 1700s being when the earliest cases of “scandalizing the court” as a form of criminal contempt (for “lowering the authority” of the courts) occurred. It was only in 1987 that the Ontario Court of Appeal threw out, by the slimmest margin, the criminal offence of scandalizing the court under the Charter of Rights and Freedoms. A lawyer, Harry Kopyto, had been convicted of contempt for telling The Globe and Mail that the RCMP and the courts were so close they seemed “put together with Krazy Glue.” A wise appeal judge commented that criticism will not always be “sweetly reasoned.”
The sensitivity to criticism remains, not only among judges but in the legal world more broadly. Judicial independence is a great thing, and is certainly at the core of any democracy. But let us put to rest the notion of courts being scandalized, or lowered, by criticism of perceived systemic flaws.