Share this Story : National Post Copy Link Email X Reddit Pinterest LinkedIn Tumblr

Kerry Sun: The Canadian Bar Association's vague attempt to shame scrutiny of the courts

This weaponizing of the rule of law to shield judges from criticism is troubling

You can save this article by registering for free here. Or sign-in if you have an account.

According to the Canadian Bar Association and its president, Bianca Kratt, recent media commentary on the state of Canadian justice risks “undermining public confidence in the judiciary.” Last week, the legal advocacy organization issued a news release in which it “warns the media on dangers of delegitimizing judges” — citing an unspecified “attack” against an unnamed judge. The apparent object of its ire: an article by National Post journalist Jamie Sarkonak, criticizing Justice Faisal Mirza of the Ontario Superior Court for undue reliance on racial considerations in his criminal law rulings. Purporting to uphold the “rule of law” and “judicial independence,” the CBA implied that such criticism was “uninformed” and “unfair.”

Enjoy the latest local, national and international news.

Exclusive articles by Conrad Black, Barbara Kay and others. Plus, special edition NP Platformed and First Reading newsletters and virtual events.

Unlimited online access to National Post.

National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.

Daily puzzles including the New York Times Crossword.

Support local journalism.

Enjoy the latest local, national and international news.

Exclusive articles by Conrad Black, Barbara Kay and others. Plus, special edition NP Platformed and First Reading newsletters and virtual events.

Unlimited online access to National Post.

National Post ePaper, an electronic replica of the print edition to view on any device, share and comment on.

Daily puzzles including the New York Times Crossword.

Support local journalism.

Create an account or sign in to continue with your reading experience.

Access articles from across Canada with one account.

Share your thoughts and join the conversation in the comments.

Enjoy additional articles per month.

Get email updates from your favourite authors.

Create an account or sign in to continue with your reading experience.

Access articles from across Canada with one account

Share your thoughts and join the conversation in the comments

Enjoy additional articles per month

Get email updates from your favourite authors

Sign In or Create an Account

It is an understatement to observe that the news release has attracted a sizeable counterreaction. As lawyer and former Chief of the Alberta Human Rights Commission, Collin May, has incisively argued in these pages, the bar association’s willingness to suppress public scrutiny of legal matters is entirely out of place in a free and democratic society. Troublingly, however, there is a growing propensity in Canadian legal circles to stigmatize criticism of judicial decision-making as attacks on the rule of law and judicial independence.

Kerry Sun: The Canadian Bar Association's vague attempt to shame scrutiny of the courts Back to video

This newsletter from NP Comment tackles the topics you care about. (Subscriber-exclusive edition on Fridays)

There was an error, please provide a valid email address.

By signing up you consent to receive the above newsletter from Postmedia Network Inc.

A welcome email is on its way. If you don't see it, please check your junk folder.

The next issue of Platformed will soon be in your inbox.

We encountered an issue signing you up. Please try again

Interested in more newsletters? Browse here.

In recent times, Chief Justice of Canada Richard Wagner has condemned what he calls “misinformation” about the legal system and denounced instances where, allegedly, “courts are questioned” and “judges are attacked.” Perhaps inspired by his remarks, the chief justices in Ontario and Alberta have made interventions of their own by issuing public statements on “judicial independence” in response to criticisms of judicial rulings from politicians. Similarly, various legal regulators have also initiated a national campaign against “the political threat to the rule of law in Canada.”

Yet there is good reason to think that the tenor of these interventions is misjudged. This is not to deny that elected officials have a responsibility to uphold the rule of law, nor to deny that the independent operation of the judiciary — through security of tenure, secure remuneration, and some degree of administrative independence — is essential. But several points bear against the association of critical commentary on judicial decisions with transgressions of those venerable principles.

NP View: Canadian Bar Association's progressive agenda undermines the rule of law

Collin May: The Canadian Bar Association just disgracefully attacked freedom of the press

Advertisement 1Story continues belowThis advertisement has not loaded yet, but your article continues below.document.addEventListener(`DOMContentLoaded`,function(){let template=document.getElementById(`oop-ad-template`);if(template&&!template.dataset.adInjected){let clone=template.content.cloneNode(!0);template.replaceWith(clone),template.parentElement&&(template.parentElement.dataset.adInjected=`true`)}});

First, it is unfortunate but revealing that none of these interventions explicitly identified the culprit or any specific transgressions at all. Without naming Sarkonak or her article, the CBA’s vaguely worded release censures “media organizations” for irresponsible commentary about “a sitting judge.” Neither the statements issued by the judiciary in Ontario or Alberta, in the past few months, set out any specific violations of judicial independence. In fact, a spokesperson for the Alberta judges declined to confirm that their statement was addressed to comments made by Premier Danielle Smith.

Syrian refugee found not criminally responsible for failing to stop after deadly Ontario crash gets absolute discharge Canada

Syrian refugee found not criminally responsible for failing to stop after deadly Ontario crash gets absolute discharge

Chris Selley: The Liberals' high-speed rail fantasy just gets greasier NP Comment

Chris Selley: The Liberals' high-speed rail fantasy just gets greasier

Advertisement 2Story continues belowThis advertisement has not loaded yet, but your article continues below.document.addEventListener(`DOMContentLoaded`,function(){let template=document.getElementById(`oop-ad-template`);if(template&&!template.dataset.adInjected){let clone=template.content.cloneNode(!0);template.replaceWith(clone),template.parentElement&&(template.parentElement.dataset.adInjected=`true`)}});

Alberta rebukes $3.8 billion federal nature strategy Canada

Alberta rebukes $3.8 billion federal nature strategy

Michael Higgins: Of course the Liberal finance minister has a conflict of interest NP Comment

Michael Higgins: Of course the Liberal finance minister has a conflict of interest

Trump agrees to two-week ceasefire if Iran reopens Strait of Hormuz Israel & Middle East

Trump agrees to two-week ceasefire if Iran reopens Strait of Hormuz

The nebulous wording of these statements is unfortunate, because it may mislead the public and engender uncertainty about the bounds of legitimate commentary on judicial affairs. For lawyers and jurists in particular, precision in language is a professional virtue. Indeed, vagueness is often the enemy of the rule of law: it prevents the public from knowing when, and how, someone has trespassed into unacceptable conduct. In the Ontario and Alberta cases, it was left to the media to piece together the puzzle by connecting the extra-judicial statements to specific comments on judicial rulings by political leaders. Unfortunately, this lack of clarity may even have led some to associate the Ontario and Alberta legislatures’ uses of the notwithstanding clause with an “attack” on the rule of law, even though the clause is itself a lawful constitutional mechanism.

Meanwhile, the tendency to vagueness might signal a belief that the alleged transgression is insufficiently serious to warrant a more categorical response. In contrast, it is to be recalled that when then-Chief Justice Beverley McLachlin took issue with the prime minister’s remarks about a judicial appointment, she did not issue an oblique message but directly contradicted the PMO’s assertions. Crafted in such nonspecific terms, the recent interventions are liable to be perceived as casting aspersions, while failing to illuminate the rule of law and judicial independence.

Second, it is questionable whether those interventions are correct that the rule of law is being undermined. Contrary to the CBA’s insinuations, the National Post article did not call for court rulings to be unlawfully ignored, threaten the judge’s personal safety, or challenge his security of tenure. (It may be added that Canadian judges do not enjoy absolute security of tenure, being subject to mandatory retirement and constitutional mechanisms for removal from office.) In other words, there was no evidence of any attack on the rule of law or judicial independence.

Instead, the article described Justice Mirza’s ostensible judicial ideology, related it to his professional background, and criticized the judge’s reasoning in various criminal cases. In drawing the connection between Justice Mirza’s prior professional work and his adjudicative philosophy, Sarkonak did no more than what many “critical legal studies” scholars do. As one law professor has argued, legal commentary on matters of “equality should be more transparent with respect to ideological motivations.” Nor has such scrutiny aroused the CBA’s fury in the past, as when other media organizations investigated the “natural law” backgrounds of Harper-era appointees to the Ontario courts.

Consider, as another example, the Alberta judiciary’s public statement on judicial independence, which is widely believed to be a rebuke to Premier Smith’s remark that she wished she could “direct” judges. Taken in context, however, it is clear that the premier was referring not to extra-legal control over the judiciary but to the government’s ability to reform the law. Judges are bound to follow the law, and the legislature is entitled to change the law to guide, instruct, and thereby direct judicial action. In response to a question about bail reform, the premier expressed disappointment that she could not amend the law because it fell outside of provincial jurisdiction. Her acknowledgment of the limits imposed by the constitutional division of powers was an affirmation of the rule of law, not an affront to it.

Third, those interventions are apt to provoke the politicization of the “rule of law” and “judicial independence.” It must be stressed that the rule of law is not the rule of courts. To the contrary, our system of parliamentary democracy relies upon the freedom of elected representatives to deliberate upon the state of the law, to identify deficiencies in the law, and to change the law — including where the need for change is exposed by judicial application, or misapplication, of the law. The exercise of this freedom presupposes, of course, that politicians and the media can discuss problematic laws and legal rulings openly.

When legal actors frame critical reactions to judicial decisions as imperilling the rule of law, it bespeaks a misunderstanding of this concept and a worrying willingness to deploy it wantonly. It may be a useful tactic to invoke the moral force of the concept to silence criticism, which accords greater prestige to those supposedly defending it. Shorn of this pretention, the CBA’s news release appears to be little more than a disagreement with the moral-political philosophy underlying Sarkonak’s critique. Kratt is entitled to her views on the relevant factors in criminal adjudication. But to wrap up those views in “the rule of law” is to treat it as a partisan concept, amenable only to those of a certain philosophical persuasion.

The great British judge, Lord Atkin, famously wrote that “justice is not a cloistered virtue.” In our constitutional tradition, the exercise of judicial power, like any other kind of official power, is subject to public scrutiny. The Canadian Bar Association is right that judicial independence is a principle that protects every Canadian, but it cannot amount to judicial immunity from reasoned disagreement. Legal practitioners, scholars, media commentators, and all those concerned with the ambit of judicial power should resist the attempt to weaponize these principles against public criticism of judicial decision-making.

Kerry Sun is a doctoral student at the University of Oxford and a member of the Macdonald-Laurier Institute’s Judicial Foundations Project. 

Share this Story : National Post Copy Link Email X Reddit Pinterest LinkedIn Tumblr

Postmedia is committed to maintaining a lively but civil forum for discussion. Please keep comments relevant and respectful. Comments may take up to an hour to appear on the site. You will receive an email if there is a reply to your comment, an update to a thread you follow or if a user you follow comments. Visit our Community Guidelines for more information.

Stop buying bad chocolate: Biggest red flags to look for when shopping Here’s what to look for when buying chocolate for baking or snacking. 14 hours ago Food & Drinks

Stop buying bad chocolate: Biggest red flags to look for when shopping

Here’s what to look for when buying chocolate for baking or snacking.

WestJet expands service to popular sun destinations in 2026 summer schedule Calgary-based airline to add more flights to Mexico and the Caribbean starting in early May 17 hours ago Travel

WestJet expands service to popular sun destinations in 2026 summer schedule

Calgary-based airline to add more flights to Mexico and the Caribbean starting in early May

Finally, a sofa bed your guests won't hate: My review of the Harmony Queen This Canadian-made sofa bed is made from multi-density memory foam 22 hours ago Home Living

Finally, a sofa bed your guests won't hate: My review of the Harmony Queen

This Canadian-made sofa bed is made from multi-density memory foam

Advertisement 3Story continues belowThis advertisement has not loaded yet, but your article continues below.document.addEventListener(`DOMContentLoaded`,function(){let template=document.getElementById(`oop-ad-template`);if(template&&!template.dataset.adInjected){let clone=template.content.cloneNode(!0);template.replaceWith(clone),template.parentElement&&(template.parentElement.dataset.adInjected=`true`)}});

The waterproof shoes that actually look good — even on Canada's wettest days Our top picks include options for hikers, commuters, fashionistas and more. 1 day ago Fashion

The waterproof shoes that actually look good — even on Canada's wettest days

Our top picks include options for hikers, commuters, fashionistas and more.

I’ve tracked Amazon deals since 2019 — here are 5 worth your money this week There are thousands of deals you can browse through on Amazon Canada, but these are the ones worth your money. 1 day ago Deals

I’ve tracked Amazon deals since 2019 — here are 5 worth your money this week

There are thousands of deals you can browse through on Amazon Canada, but these are the ones worth your money.

© National Post