The Hill:

HARPER CHALLENGED AS SILENCE OF THE JURISTS ENDS

Watch out, Stephen Harper. Judges have started fighting back. For the
past four years, the prime minister and his government have dumped on
them, calling them biased, accusing them of "judicial activism," and
describing them as Liberal hacks.

Harper's MPs have also accused judges of being soft on crime,
pandering to criminals at the expense of victims, and not knowing much
about sentencing.

Perhaps Harper thought things would just go on as before and that no
one in the judicial system would ever dare to stand up to him. But
something different happened earlier this month. A Superior Court
judge in Sudbury, Ont., Justice John Keast, defied Conservative
marching orders and chose rehabilitation over punitive sentencing for
a couple of boys who had set fire to a local union building. In doing
so, he said long sentences brutalize society, don't prevent crime, and
waste taxpayers' money.

Where did the judge get the courage to stand up to Harper and his
Americanization of our penal system? Any number of judges could have
made the same stand in the last four years. But it was Keast who did
it.

Kirk Makin of the Globe and Mail reported that Keast's stand followed
a speech denouncing mandatory minimum sentencing by Ontario Court of
Appeal Justice Marc Rosenberg at the Criminal Lawyers' Association
conference in Toronto. Maybe his words were an inspiration for Keast.

By coincidence, it came at a time when the Conservatives are trying to
push anti-marijuana legislation through the Senate that would force
judges to impose mandatory minimum sentences for growing as little as
five plants. Bill C-15 has been called a horticulturalist's nightmare.
There are no judges in the Senate, but there is outspoken former
broadcaster George Baker, a bulldog Liberal senator who has rallied
opposition against the bill.

"We should not take away the discretion from the judge and put it in
the hands of the Crown prosecutor," Baker thundered with all the
determination of Monty Python's Black Knight.

Harper was expecting easy sailing through the Senate. After all, timid
Liberal MPs in the Commons had given in and voted for it. Harper must
have wondered, who is this guy Baker, anyway? Why doesn't he take his
orders from Michael Ignatieff?

Again, the political planets sometimes have a way of lining up -
Rosenberg, Keast, and now Baker. Where does it end? Will the bar
associations stand up, too? What if more people start challenging
Harper over his criminal law agenda?

Strangely, the revolt came as Conservatives had been in the process of
taking apart one of the country's top diplomats, Richard Colvin,
because he dared to write reports detailing concerns over the torture
of prisoners turned over by Canadian soldiers to Afghan police, which
put Defence Minister Peter MacKay in the position of denying the
allegations.

Now Colvin, instead of being the Taliban dupe who got his information
from "people who throw acid in the faces of kids," turns out to have
been a human rights hero as dozens of former Canadian ambassadors
suddenly stood up for him last week.

Who would have thought? What if somebody had stood up when MP Maurice
Vellacott went after Supreme Court Chief Justice Beverley McLachlin by
saying she thought she was God and had said so herself?

It wasn't true, but all Vellacott had to do was apologize politely in
the Commons while McLachlin was left swinging in the wind having to
defend herself alone and trying to prove she had never said that. When
Harper abolished the Law Reform Commission and then-justice minister
Vic Toews bragged he had saved taxpayers $4.2 million a year by
scrapping legal advice the government didn't need, who spoke out?

Who spoke out against mean-spiritedness when Harper's ministers
refused to recognize the work of former Supreme Court justice Louise
Arbour as United Nations human rights commissioner?

How about when every single Conservative cabinet minister took a pass
on anniversary celebrations for the Charter of Rights and Freedoms?
Not one Supreme Court judge dared to point out the cabinet's absence.

The challenges could have begun a long time ago, on June 12, 2000,
when Harper railed against biased judicial activism. "Serious flaws
exist in the Charter of Rights and Freedoms, and there is no
meaningful review or accountability mechanisms for Supreme Court
justices," he said.

Is that so? What about the Canadian Judicial Council? Was everybody
asleep? Harper's latest tirade came at a closed-door speech to
Conservative supporters in Sault Ste. Marie, Ont., on Sept 2. He spoke
against judicial independence and made it clear that if he ever
obtains a majority, he will stack the bench with judges who are not
"left-wing ideologues."

"I ask you for a moment to imagine how different things would be if
the Liberals were still in power. . . . Imagine how many left-wing
ideologues they would be putting in the courts. . . ." Nobody in the
judicial community spoke out. Why not? Was it the silence of the
jurists? All of that may have changed this month. Time will tell.