THE BENCH

Re: What Are Judges For, Jan 15.

Politicians generally appear unwilling to lead. They refuse to take action
on what they recognize as social wrongs because to do so might create a
reaction aimed at them. Far better, surely, to let a court do the deed.
Then the fuss can be redirected to Canada's judiciary, which cannot defend
itself. Canada's shameful record on aboriginal issues surely is illustrative.

Governments, provincial and federal, rarely represent more than a minority
of the popular vote, and an even smaller proportion of eligible voters. Few
Canadians feel their elected representative in fact represents anything
other than party interests and the leader, or is responsive to anything
other than special interest groups. It is not surprising that Canadians
tend to support the courts acting on issues in the face of a lack of
political courage. In some ways, the courts appear more representative of
the mainstream of Canadian values as compared to the often narrow views and
regressive values of those the politicians apparently fear. Changes in the
most flagrantly unconstitutional aspects of Canada's drug laws, and the
procedures used to enforce them, have come about almost completely from
judicial decisions made in the face of political refusal to act.

In my experience as a former senior civil servant, this is not an
unconscious process. I participated in discussions with politicians related
to issues and pending legislation where the notion of "let's leave it to
the courts" was explicitly on the table.