Legal Research

McLachlin Rebuffs Critics

By Omar Ha-Redeye

When Dr. Henry Morgentaler was presented the Order of Canada some people raised eyebrows, but few were in a fury.

Church officials expressed disappointment with the appointment, and the Federal government deliberately distanced themselves. Dimitri Soudas, a government spokesperson, said,

The Conservative Government is not involved in either deliberations or decisions with respect to which individuals are appointed to the Order of Canada…

Rideau Hall makes these appointments based on the recommendations of the Advisory Council for the Order which is chaired by the Chief Justice of the Supreme Court of Canada.

Nobody expected the controversy to result in calls for the resignation of McLachlin, with critics citing bias and judicial activism.

Yesterday Chief Justice Beverley McLachlin clarified her role on the committee stating it was primarily an advisory function, and that there was a lot of misinformation around.

Of course all of this raises the recent study by law Professors James Stribopoulos of UofT, and Moin Yahya of UofA, Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes?

Also worth reviewing is the late Berta Wilson’s works on the role of women in the judiciary. Wilson had expressed concerns that her impartiality could be compromised by expectations that she advocate for womens’ rights.

Brian Tamanaha cited Morris Cohen in his book, Law as a Means to an End in his chapter on post-modernity and judicial objectivity,

[The] judge’s feelings as to what is right and wrong must be logically and scientifically trained. This trained mind sees in a flash of intuition that which the untrained mind can succeed in seeing only after painfully treading many steps. They who scorn the idea of the judges as a logical automation are apt to follow into the opposite effort as exaggerating as irresistible the force of bias or prejudice. But the judge who realizes before listening to a case that all men [or women] are biased is more likely to make a conscientious effort at impartiality than one who believes that elevation to the bench makes him [or her] at once an organ of infallible truth.
[emphasis added]

Talking about biases doesn’t necessary make it so, but the process makes sure that all of us are on guard from it occurring when inappropriate.

Full post as published by Slaw.ca on August 17, 2008 (boomark / email).