Dear National Post,

I am submitting this as possible response opinion to Mr. Brian Mulroney's piece on page A11 June 4 , 2007 in National Post, " Canada's spirit of liberty". His view is but one about the "system" he speaks of.

I hope you will consider it for perhaps an op ed or other column in the debate about Charter, judicial activism and government that goes on in our nation.

A response to Brian Mulroney's assessment of liberty and justice:

In Mr. Mulroney's speech to the Quebec bar he has taken the liberty of reinventing the opening comments of OUR Charter. "... founded upon principles that recognize the supremacy of God and the rule of law." Mulroney has taken even greater liberty by replacing a key phrase from the opening line of OUR Charter, perhaps with the intention of lifting judges to a level not given to them by Charter or Constitution. Mulroney stated " At the heart of our system lies the rule of law and the independence of the judiciary." So is he suggesting the judiciary are gods?

Perhaps he is not referring to the Charter at all but only the system of justice. But what then is this system founded upon? May I suggest that even if Mr. Mulroney is talking exclusively about the justice system he is missing a key component that has historically made the "system" very much more effective than it is today. Justice must be founded upon something greater than the whims of man, the limited wisdom of a judge, or even a man written Charter.

I partially agree that the independence of judges from politics as he argues is not in itself wrong. But if he means independence of judiciary is that judges have the total free reign of "marching to their own drummer", then we have a very significant misuse and even abuse of the system. Did the drafters of the Charter and the writers of the Constitution have the intent that judges march to their own drum and ignore the drum of the citizens. Did the signors of our Charter all have in mind a "democracy" where judges could interpret the law, rather than applying the law to the case before them? Does our Charter really allow judges to reshape and order society based upon one court decision, even when the evidence may indicate the harming of the betterment of life and liberty for many?

Any society that allows one or a very few humans to rule over them, unchecked, is doomed to take the shape of those ruler's ideologies. Dictators shape their society with fear and intimidation, even murder in some instances. In a more civilized society, which I would suggest is Canada, the shaping of society increasingly is being accomplished from simple court rulings. Civilized citizens will unlikely rebel against those rulings as they are "law". And being law abiding Canadians we knuckle under those laws set by one or two or at most nine judges. In that style of judiciary and system there is then NO recourse. One has no appeal of Supreme judge's rulings, no matter how wrong they may be.

When parliament makes a law which runs contrary enough to the will of the people or the common good those politicians will pay the price. They will enter the unemployment line after the votes are counted at the next election. However as we have seen, with judges, an increasing arrogance rising in the chambers and on the bench to the extent that several justices have been heard saying, "we must shape society". Are judges held accountable by anyone? Is this the real independence that Mulroney supports?

Mr. Mulroney's definition of rule of law included a number of categories of people; the prime minister, governor -general and even the Queen. But he failed to mention that rule of law is to encompass also those who "interpret" the laws - judges.

Perhaps this is where we have lost our just way. Liberty to interpret the law that exists versus applying the evidence of a case to the established law is very different. Many, but not all judges now seem to take the liberty of interpreting the law to fit the case. What would the system that Mr. Mulroney is talking about be like if judges ruled based on the facts of the case and applied the existing law instead of using their higher interpretation of the law?

There is an inordinate fear of losing the "independence' of the judiciary. This ought to alert us to something. Fear of losing ones independence has spawned revolutions, it has driven people to despair and even suicide, so what is the fear of losing this " independence" of judiciary that brings about strong reaction from bar associations, ex prime ministers and many judges themselves? Is it a deep seated concern about how society might shape itself under elected representatives? Is it the matter of loss of position or title? Or is it much more sinister than that? If in the 21st century the role of judges is to shape culture and rule society then it would seem the fear of loss of powers might be a root. Brian Mulroney even suggests that we nor our elected people should have any say in how much judges are paid. Is that the ultimate independence from the people?

In a democracy the shape of society ought to come from the majority of citizens who must live together and come to a common understanding of life together. Social norms usually have influence as deeply as laws. For many Canadians religious belief and tradition hold deep value and guide much of life together. Public good, a term lost and a principle ignored today, had great significance in shaping Canadian culture historically. All law previous to the "new judicial system law" had moral roots. Be it speeding, rape, murder or smoking. The behaviors displayed by people in public were guided by what was for the public good. But under the "new system" it is evident that law accomplished through court rulings is not based upon the principles of public good, morality, or social norms, but upon the ideologies held by judges who deem their beliefs are best for all 34 million Canadians.

Me thinks we have exalted lawyers, judges and a misguided justice system far to high for our own public good. Samuel Adams, who helped draft the Articles of Confederation for our neighbor nation, once wrote, "If we continue to be a happy people, that happiness must be assured by the enacting and executing of the reasonable and wise laws expressed in the plainest language and by establishing such modes of education as tend to inculcate in the minds of youth the feelings and habits of piety, religion and morality."

What principles are used today for happiness and justice?

The power of the people, it can be assumed from Mr. Mulroney's thoughts, must be less than the power of the "system" and "the judges" who rule the system. He argues that rule of law and judicial independence is "at the very heart of our freedoms."

I would suggest the forgotten or discarded other principle in our charter , " the supremacy of God" is much more a guarantor of our freedoms.

Brian Rushfeldt
Canada Family Action Coalition
Calgary AB 403-295-2159