WHITBY FREE PRESS, WEDNESDAY, APRIL 10. 1985, PAGE 5 "I have sworn upon the altar of God eternal hostility against every form of tyranny over the mind of man." - Thomas Jefferson Uu~Ufll1 2a¶11r E0 THE CROW'S NEST by Michael Knell We've all heard the Bard's expression: "The law is often an ass" (a jackass, that is). Well, so are judges from time to time. This observation comes from two cases that recently made the news. The fir- st happened right here in Ontario when a judge said that a woman practically invited rape because her profession (stripper) "promoted lust". In other words, the judge implied that she was not the victim, but the perpetrator. Now, 1 don't care what anyone says, a woman's profession is not an invitation to rape. After all, rape is the violent act of forcing sexual intercourse on a woman against her will. And those are the key words, against her will. If the act was against her will, then a crime has been committed. That is all the judge needed to have worried about. Not her profession. The other case oécured in New Brunswick at the conclusion of the infamous Richard Hatfield pot trial. When he discharged Hatfield, the judge in the case speculated that the marijuna could have been planted on Hatfield by a reporter out to get, what he referred to as, "A juicy story." The judge even mentioned the reporter's name. The judge made the accusation without one shred of court admissable evidence. But the thing that irks me more than anything else is that acts such as these will go unpunished. No one, not a more senior judge, justice minister or the Canadian Council on the Judicary will slap these two gentlemen on the wrist, let alone recommend that they be removed from the bench. And the reason for this is quite simple. They are judges. Our system has made anyone who sits on the bench a person apart from the rest of society. Our system bas not only allowed judges to become isolated, but has granted them the unusual privilege of policing themselves. In other words, they have to get rid of their own rotten apples. And because, judges see themselves as a brotherhood they are reluctant to clean their dirty laundry in public. In fact, ever since Parliament created the Canadian Council on the Judicary, not one judge has ever been impeached. Oh, several have resigned rather than have the ultimate punishment for misbehaviour invoked but the procedure leading to those resignations has never been public. Criticism of bad judges has always been somewhat stifled in Parliament, b the press and by the public because we have given judges extraordinary powers of self-protection. Politicians do not like to be seen as interfering with the judicial process and judges have the power to cite for contempt any journalist who dares to criticise their actions. Another stifling factor has always been that our system believes (quite rightly) that judges should be completely independant. They should make their decisions based on the evidence and without outside pressure or interference. But the price we pay for that independence is a high one because the band of brothers who sit on the bench are reluctant to punish or reprimand one of their own when they make foolish pronouncements such as the ones I referred to. The inspiration for this column came from an article I read in Sunday's edition of the Toronto Sun. In that piece, many of the concerns I have voiced were to be found there. But I would like to add a few more. One of the major problems with the system of appointing judges is that it is far too political. The Prime Minister of Canada and the Premiers of the 10 provinces have the ultimate responsibility and authority to appoint judges. So, appointing someone to the bench often becomes a patronage plum. The leader rewards the party faithful. Another major problem is that we now tend to appoint only lawyers to the bench. Now, while I'm willing to concede that a knowledge of the law is needed by most trial judges, I'm not sure we need nine lawyers to sit on the Supreme Court of Canada. The higher courts tend not to deal with specific infrations of the law. The supreme court of the nation and the provinces usually deal with legal issues. While these issues may have been prompted by a specific case, by the time it gets to them it is the issue, not the case, that has become important. It is my contention that when dealing with legal issues - such as whether or not abortion or capital punishment in constitutional - historians, philosophers and other scholars will have as much to contribute as lawyers. Enormous improvements to our system of justice could be made if we did three things. Firstly, let's not restrict appointments to the bench to lawyers (it's probably logical to assume that mediocre and bad lawyers would make mediocre and bad judges). Secondly, we should adopt the American system for appointing judges. That would mean that the Prime Minister would nominate candidates for the bench. That nomination would be reviewed by the Justice Committee of the House of Commons who would recommend to Parliament whether or not the P.M.'s nomination should be confirmed. The third and most important thing would be a tightening up of the rules and bodies governing judges. Judges should not be allowed to continue to judge judges. Tribunals such as the Canadian Council on the Judicary should not only be made up of judges but of lawyers and laymen as well. Judges preside at public trials that hear evidence and make decisions m the public eye. They are paid from the public purse. Therefore, they should be made subject to the public scrutiny. While the main concern of a judge should be the fair, impartial and con- stitutional application of the law and while they should make those decisions without outside interferance (and have the power to protect themselves from such pressure) they should also realize that they hurt their own credibility when they fail to deal publically with their brother judges who make foolish pronoucements. You accumulate too many ideas for a weekly column, perhaps not enough for a daily. They start to jell in your mind, so this week an accumulation of ideas, not necessarily m order of importance. Since I wrote those few random items on what makes a town a "place" not just a loose community of commuters, shopping centres and housing developments, 1havebeencstruck with another idea. It came to life again when Tom Edwards spoke out about the industrial/residential ratio. I applaud Mayor Attersley's call to commerce and industry to locate in Whitby. I was appalled at the front page position the Oshawa Times gave to a silly article about the Carlton St. (Toronto) billboard. I remember that it was two years ago, 1 said (for anyone wbo cared to listen) that the GO extension was not so great. It would make Oshawa-Whitby in- to even more of a domintory of convenience for Toronto bound commuters who would neither work in nor care much about life in the region. The chickens are coming home to roost. The failure of government to extract a big "pro quo" from developers has overloaded the residential tax base. What should have happened if there was a real "plan" was that for every say, six residential units, there would have to be fourindustrial commercial units built and occupied. Watch out, in a short time local residents who moved here just for lower taxes and lower house prices will find themselves saddled with a tax burden that should be taken by industry. It happened in North York a few years ago, the costs landed squarely on the homeowner. Another accumulated opinion. Heard anotherad- vocacy for armed forces service for youth. The usual stuff. Make men of them. Teach them a trade. Teach them discipline. Maybe what I say nexi wil finally evoke some kind of response from readers who seem content to move on without comment. Conscription does not make men out of boys. Life makes men out of boys. The draft of the United States did not solve the problem of disaffected youth. The bad ones became bad soldiers. The armed forces do not want iazy or indifferent or disruptive young men. I would not like to be defended by soidiers whowere punks in civilian life. True enough, it does turn some punks intq men but any idea of automatic service is unacceptabie. It, may take the misfits off the street but it would em- brace the far greater percentage of fine young men who are neither punks nor lazy; wbo want to finish their educations, who will not be unemployed, who are highly motivated. What point is there in punishing the majority of youth because some aduts think ail "kids today" are bound for hel ina lunch bucket. Another. The Star Wars melodrama. I have to call it that, because it is both high drama and overac- ting. The picture of a world being saved by a fantasy defense system is ludicrous. Reagan is making politics with a scientifically impossible scheme. He is shaking a paper sword. Most scientists giggie at the idea of an outerspace death ray. If it can be done, we are still light years away from it. The Russians are angry not because of the Buck Rogers defense idea but because the Americans are violating the treaty not to develop an A.BM. system. At the same time, I have no time for Russian political adventuring, the destruction of human rights or the intrusion into the sovereignty of other nations. Ilowever, I think, our own gover- nment could come up with something a bit more worthy as a job creation project. Finally. This is my last column. I leave with many ideas unexpressed and many opinions unspoken. I leave lamenting that in the passionate expression of ideas, there is a lack of spirited response. I leave lamenting that apparent lack of real will to express ideas and make changes. But we are not totally without spirit. We really can galvonize public opinion around a subject. Cut-off Ontario's beer and everyone talks about it, is angry about it, worries about it. It was front page news, it was the lead item in radio and television news, it devestated the restaurant business. Thank-you and farewell. SOL WAY Thank-you