As reported in the Globe and Mail, Justice Colin Westman has joined a chorus of Canadian judges refusing to apply the law, as a protest against the federal government’s criminal sentencing legislation. Whatever the merits of their political views on the subject, the rebellious judges threaten a constitutional showdown which they will not, and should not win. As lawyers and law students, it is important for us to understand why judicial rebellion is not judicial independence. Judicial rebellion harms judicial independence. To see this, one has to understand the source of judicial power.
Few subjects beguile new lawyers more than the interpretation of commercial general liability insurance policies (CGL). This includes many corporate-commercial lawyers contributing to complex agreements running into hundreds of pages. Show them a CGL form, and their eyes glaze over. But most CGL policies are only a few pages long, and the longest run a few dozen pages. Once you “get” the basic structure of the agreement, as described by Justice Rothstein at paragraphs 26-28 of the 2010 Supreme Court of Canada decision in Progressive Homes v. Lombard, you’ll wonder why you ever thought the subject so daunting:
The reward for approaching every case with an open mind … Is the chance to see your name in print as counsel. Lee Akazaki has appeared as counsel in over 79 judicial decisions reported in Quicklaw, as well as 24 decisions in print reports such as the Ontario Reports (O.R.), Dominion Law Reports (D.L.R.), Ontario Appeal Cases (O.A.C.), Canadian Patent Reports (C.P.R.), Canadian Bankruptcy Reports (C.B.R.), Real Property Reports (R.P.R.), Canadian Cases in the Law of Insurance (C.C.L.I.), Canadian Insurance Law Reporter (I.L.R.), Carswell’s Practice Cases (C.P.C.), Ontario Trial Cases (O.T.C.) and All Canada Weekly Summaries (A.C.W.S.)