Attack on ex-judge raises questions about line between politics, judiciary

With an NDP candidate under attack from the Conservatives for her rulings while on the bench, a political science professor says the criticism is part of the risks faced by judges who make the leap from the bench into politics.

“This is one of the risks of people who have held judicial office becoming involved in partisan politics,” says Emmett Macfarlane, a professor at the University of Waterloo, of the Conservative attacks on B.C. NDP candidate Carol Baird Ellan.

The comments follow the launch of a Conservative web site, youbethejudge.ca, suggesting Baird Ellan was soft on crime while on the B.C. Provincial Court bench. “For five years she was a member of the B.C. provincial court, time and time again, when serious criminals — including sex offenders — appeared before her court, she exercised her discretion to give them a lenient sentence,” the web site states.

“Now, Ellan is helping the NDP bring their soft-on-crime approach to all of Canada.”

The web site highlights three of Baird Ellan’s rulings that it deems “unfair.” In one case, it says she gave a two-year sentence to a man who sexually abused his two granddaughters for six years. In another, she sent a man to jail for one day for exposing his genitals to minors, according to the web site. Two of the cases date back to the 1990s, while the other is about five years old.

Baird Ellan has been off the bench for some time, having retired from the court in 2012. After winning the NDP nomination for Burnaby North-Seymour earlier this year, she said she wanted to try to bring about change as an elected politician and highlighted issues, such as the environment, that she feels strongly about. Macfarlane, who has written a book looking at some of the issues surrounding the judiciary, Governing from the Bench: The Supreme Court of Canada and the Judicial Role, says the Conservatives have a right to question the rulings of judges who run for office. “It’s fair ball for the Conservatives to look at a candidate’s record,” he says, noting the situation raises questions about the line between politics and the judiciary. The perception matters, he adds, suggesting he has concerns as well about former cabinet ministers, such as Manitoba Court of Queen’s Bench Justice Vic Toews, who quickly joined the bench after leaving politics.

“I think there’s a real issue there that we have to do some hard thinking about,” says Macfarlane, adding there may be the need for rules such as a cooling-off period before those who leave the bench can enter politics.

“Perception is what kind of holds the thing together,” he says, noting that movement between the bench and politics can raise questions about a judge’s impartiality while on the court.

For her part, Baird Ellan says her party has lots to offer when it comes to dealing with crime and boosting public safety.

“The fact is the Conservatives are getting increasingly desperate with their misleading attacks," she says. "I was the first-ever female Provincial Court chief judge and when it comes to crime and policing, Canadians are looking for action but the Conservatives are just giving them a bunch of broken promises. Tom Mulcair has a plan to make streets safer by relaunching the police officer recruitment fund and put 2,500 new police officers on the streets. That’s the change Canadians want.”

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