In a commentary in the Ottawa Citizen, SJD student Andrew Flavelle Martin discusses the danger created by cases in both the US and Canada where judges have been targeted by elected officials ("Targeting a judge isn't OK, whether in the U.S. or Canada," February 9, 2017).
Read the full commentary on the Ottawa Citizen website, or below.
Targeting a judge isn't OK, whether in the U.S. or Canada
By Andrew Flavelle Martin
February 9, 2017
On Jan. 27, U.S. federal judge James Robert of Seattle suspended enforcement of a controversial executive order issued by President Donald Trump. The White House issued a statement referring to the decision as “outrageous.” (A subsequent statement omitted that word.) The next morning, Trump on Twitter described this as a “ridiculous” decision by a “so-called judge.”
This is a serious problem. The rule of law depends on public confidence in an independent judiciary. Judges, like anyone else, sometimes make mistakes. Appeals exist to identify and correct those mistakes. If the president disagrees with the decision, then he should appeal it, as the administration did. A higher court will ultimately decide. In the meantime, Trump, like anyone else who disagrees with the decision, may publicly explain why.
But to ridicule the decision, and question the competence and legitimacy of the judge himself, is something different – something flat-out dangerous. While in the short term it may benefit the president and invigorate his supporters and allies, in the long term it harms all Americans. Some senators and members of Congress have already said so.
Surely that kind of outburst would never happen here in Canada. Except it already has.
In May 2014, then-prime minister Stephen Harper alleged that Chief Justice Beverley McLachlin had acted inappropriately in contacting the attorney general and also sought to contact the prime minister himself. The attorney general at that time, Peter MacKay, repeated that allegation. These criticisms were completely baseless.
Shortly thereafter, in June 2014, then-health minister Rona Ambrose was asked to comment on a Supreme Court decision about medical marijuana. Ambrose said she was “outraged.”
So when the prime minister or president, or a member of their cabinet, improperly criticizes a judge, what is the attorney general to do? The attorney general is the government’s lawyer. Like all Canadian lawyers, he or she has a professional duty to “encourage public respect for and try to improve the administration of justice.” Under Canadian law, the attorney general also has a positive obligation to “see that the administration of public affairs is in accordance with law.”
Peter MacKay certainly had an obligation to inform the prime minister that the criticism of the chief justice was inappropriate. He certainly had an obligation not to support or reinforce that criticism. For reasons known only to him, MacKay violated that obligation. He had equivalent obligations regarding the criticism by the minister of health, and there is no reason to think that he violated those obligations.
Arguably, MacKay had a further obligation: to publicly denounce the prime minister’s comments. (Brent Cotter, a professor of law at the University of Saskatchewan and a former deputy attorney general of Saskatchewan, has made this argument compellingly.) And those of the minister of health.
So what should the U.S. attorney general do about President Trump’s remarks? While there are some differences between the role of the attorney general in Canada and in the U.S., the MacKay debacle is instructive. At the least, the U.S. attorney general must privately advise the president that his remarks are inappropriate, and avoid publicly endorsing the criticism.
Arguably, he must go one step further: publicly denounce the president’s comments. The many senators and members of Congress who are lawyers should do the same.
To do anything else would be outrageous.
