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Defending freedom of speech is a thankless and unending job because the “perps” very early on get demonized by the popular media or worse, by politicians. Such is the case of MP, Maurice Vellacott in his fall from grace and his position as Chair of the Commons aboriginal affairs committee.

This comment is not intended to judge what was said by the MP, I hold no brief for him or his views: rather, the critical issue here is the freedom of speech he exercised to comment on the nature of the current Supreme Court and the Head Supremo herself. More directly, his comment seems to me to be primarily directed at judicial activism long a subject for debate – thank goodness.

As often happens, the speaker did not quite have is ducks in a row and as a result he attributed words to Mme McLaughlin that she (evidently) did not utter. The occasion was the Lord Cooke Lecture in Victoria University , NSW in Dec 2005.

For those curious amongst you, here is the link to the text she evidently delivered. It looks to me as if only parts of the text are presented.

http://www.nz-lawsoc.org.nz/lawtalk/660Cooke%20lecture.htm

At the time of the lecture, an article did appear in (likely) either the National Post or the Ottawa Citizen in which the main thrust, similar to the MP’s misspeak, was the exact nature of the role of the Supremes. McLaughlin herself tackles the issue in her lecture noting that under a common law heritage such as ours, judges must apply unwritten constitutional “norms” to “trump bad laws or state action.” OK, but only sort of OK, because the outstanding uncertainty here is who decides and on what basis that something is a norm that will trump the written constitution or state action?

Now, the MP has resigned because of pressure from within the committee – partisan criticism according to Vellacott – even though, at the time of the lecture in Dec 2005, virtually the same questions were raised about what she said in the lecture or perhaps she said in an impromptu interview. In fact, the newspaper article I read about her lecture included immediately crisp denials from the PR flack traveling with Mme Supremo, excoriating anyone who could imagine such as thing as judges having really supreme powers.

My brief archives search failed to turn up the comments that I thought I had written on this event – perhaps they were only done as a comment in Little Green Footballs (lgf) but no matter. My clear memory is that the denial was too quick and too strident, a sure sign of damage control on full alert. Funny too I also remember that at the end of the denial, what exactly was said and in what context, was still rather opaque.

All of this a by way of preamble since the crux of the situation is this: both the NP and the Citizen report that the Canadian Bar Association called for the resignation of Mr. Vellacott! Neither story provided the rationale from the Bar for the decision to adopt this breathtaking viewpoint.

Just what role does the CBA think it holds with respect to the Supreme Court? Does it imagine itself as some sort of umbrella protector of the faith? To be precise, just who decided for the Association as a whole to call for the resignation and what “fine principle” is it posturing for in the call?

Last I looked, the Supreme Court and its members are not exempted from criticism or critique by any Canadian law or statute. Specifically, MPs have a duty to speak to these and other challenging issues of the day – that is part of the job.

Fact is however, there has been precious little questioning of the Supremes views and rulings, although the “activist court” that we have had in Canada ever since the passing of the vaunted Charter of Rights and Freedoms, has arguable extended the scope and intent of the Charter on several, perhaps many occasions. This is no secret.

Again what is no secret is that this bench has had a distinct left lean for decades. In my humble opinion, a left lean that is tantamount to “flavour of the month” in that it reflects not time honoured (and different) positions but rather, denies these opposing views as somehow – and to use the deconstructionist approach – lacking in validity deriving as they do from “dead white European men”.

Too bad the Bar did not do the right thing and praise Vellacott for, however imperfectly, making a public statement on the very public issue of court activism.

Just another nail in the coffin of our democracy.

cn