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| John L. Hill |
When judges do speak out, it attracts media attention. In 2015, then-prime minister Stephen Harper’s government clashed with Chief Justice Beverley McLachlin over her concerns about the eligibility of a Supreme Court nominee (Marc Nadon). While McLachlin did not directly criticize Harper in public speeches, the situation led to political controversy. Harper’s comments undermined judicial independence, and McLachlin responded through formal channels, leading to public and legal community defence of the judiciary.
Another instance of the judiciary speaking out concerns former justice Rosalie Silberman Abella. Known for her progressive views, Abella gave many speeches on human rights, social justice and equality. While she did not directly criticize specific politicians, some of her speeches implicitly challenged political trends or policies (especially those that undermined rights protections or marginalized communities). These were typically framed in general legal and philosophical terms, avoiding direct political confrontation.
In Canada, we have never had a situation like the one Bonnie Eslinger reported on for our American counterpart, Law360. The report covered California Supreme Court Justice Goodwin Liu mocking current American political issues while delivering a commencement speech and telling the University of California College of Law, San Francisco students that by “executive order,” he was directing the faculty of the law school to award all As for their spring semester. He added, “There’s no point litigating this, and I don’t want to hear about academic freedom or due process — just do it.”
Following this barb, he announced, “Also, how many of you have student loans? Well, you’re in luck because there’s no one left in the U.S. Department of Education to collect the money.” If they had past, present or future problems, he promised each student a full and unconditional pardon for anything illegal they had done, were doing or might do in the future.
He also suggested that judges should not wear black robes because black is “woke.” He added, “Black’s Law Dictionary — forget about it. That’s a banned book.” As for 18th-century English jurist William Blackstone, “He did wear one of those pretty wigs with long, curly hair, which makes you wonder about the transgender issue.”
Like Abella, Justice Liu was delivering an important and timely message. He quoted U.S. Supreme Court Justice William O. Douglas’s 1953 comment during the McCarthy era: “History shows that governments bent on a crusade, or officials filled with ambitions, have usually been inclined to take shortcuts.” However, Justice Liu’s critical message was in Douglas’s words: “We have a duty to see to it that the recurring episodes and expedients by which dominant influences exploit mistrust and intolerance do not become the accepted pattern.”
Justice Liu warned the graduates, “In the days ahead, you will be tested. You may represent people or causes [that] are unpopular. You may have to make arguments that are hard. You may feel exposed or even threatened. But your clients and our nation are counting on you. But tomorrow, and every day thereafter, remember who you are. You are advocates. You are defenders. You are officers of the court, guardians of the rule of law — with the fate of our democracy in your hands.”
Judges in Canada are guided by the Canadian Judicial Council’s Ethical Principles for Judges, which discourages political commentary. Judges are expected to avoid public comments that could question their impartiality. Nonetheless, should the executive branch of Canada get so out of line that democracy in this country is threatened, hopefully our judges and lawyers will be the first to speak up.
John L. Hill practised and taught prison law until his retirement. He holds a J.D. from Queen’s and an LL.M. in constitutional law from Osgoode Hall. He is also the author of Pine Box Parole: Terry Fitzsimmons and the Quest to End Solitary Confinement (Durvile & UpRoute Books) and The Rest of the [True Crime] Story (AOS Publishing). The Rest of the [True Crime] Story has been shortlisted for a prestigious Brass Knuckles Award, which is the Crime Writers’ of Canada’s prize for best nonfiction crime book of the year. Contact him at johnlornehill@hotmail.com.
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