Tuesday, May 04, 2004

TORONTO - Judges are the "new priests" of Canadian society, but their traditional training has not sufficiently equipped them to rule on such divisive social questions as abortion and same-sex marriage, argues one of the country's top judges.

While some judges remain publicly coy about their powers as social policy-makers, Quebec Chief Justice Michel Robert acknowledges that the job of judges has changed "tremendously" since 1982 when the Charter of Rights and Freedoms became the supreme law.

"I think we are very powerful, but we are not always, I think, prepared to play this role," the chief justice says in an interview published this week in The Lawyers Weekly.

"We have now become an instrument of 'governance,' in the wide sense of the word. We are becoming the new priests of civil society, in a way, because we are making decisions about same-sex marriage ... about euthanasia and abortion. We are making decisions about many other very controversial issues which have a very large moral content and moral connotation."

This migration of profound moral questions from the religious realm of priests into the legal bailiwick of judges has serious implications for the education of lawyers and judges, Chief Justice Robert said.

"We are defining the fundamental socio-economic values of the society and I don't think this will change (but) ... it will have to change the training of lawyers in the faculties of law," he argued.

Chief Justice Robert suggested that before being admitted to law school, university students should be required to study the social sciences and humanities, such as sociology, psychology, political science and philosophy. Law faculties should also put more emphasis on teaching Supreme Court of Canada Charter jurisprudence, he said.

The switch from parliamentary sovereignty to constitutional supremacy in 1982 empowered judges to decide contentious social issues, but it is a power the judiciary did not seek and should exercise with restraint, the chief justice observed.

The chief justice called Parliament's entrenchment of the Charter the most fundamental legal change in Canadian history, second only to the creation of federalism in 1867.