Thursday, April 07, 2005

Last thoughts

Babble on.

Now that the publication ban on Jean Brault's testimony before the Gomery Commission has been partially lifted (ht:OC), I'll make one last comment on the 'free speech' controversy.

Read this from one of those who led the charge to defy the ban, Kate at SDA:

That the testimony that directly implicates those who face fraud trials is remaining under ban is a provision that I think is acceptable, and I will do my utmost to respect it, and ask my commentors to do the same.

Then read this from Justice Gomery:

"It is in the public interest that this evidence, with few exceptions be made available to the public," Judge Gomery said.

In making his decision, the Judge said he could not grant the ban on the testimony because it was in the greater interest of other parties to allow the information to come out.
He said at the time he imposed the ban, he did not know what Mr. Brault would say.

"I imposed the ban as a precaution to prevent a possible prejudice." (bold by Babbler)

Follow along with me for a moment, if you will: if even the fiercest opponents of the publication ban believe certain prejudicial portions of Brault's testimony should remain secret even now, and if Justice Gomery didn't know prior to the testimony which parts would be prejudicial, doesn't it follow that the decision to impose a temporary - can I say temporary again? - blackout was a sound one? It's one hell of a lot better a solution than having the entire incendiary testimony heard in camera, where none of us would know squat.

Remember, we don't make decisions in hindsight, and with the information he had at the time - that is to say, none about what Brault would say - Gomery made the most reasonable call he could.

Having seen him unfairly villified by both the left and the right of the political spectrum, I wonder how easy it will be to find a competent jurist willing to take on a commission of inquiry the next time we need one.

Babble off.


At 3:51 p.m., Blogger Sean McCormick said...

Isn't 'competent jurist' an oxymoron?

At 6:30 p.m., Blogger Sacamano said...

I think you are absolutely correct Damian. There seems to be an incredible anti-jurist sentiment floating around, both here and in the US.

When you hear people blame "activist judges" for interpreting laws that that they don't like, there is a problem. The judges don't make the laws folks, and true judicial activism is pretty rare. Frankly, where it does occur it tends to be a result of legislators failing to address a particular issue in the first place, thus forcing the courts to make the decisions for them (this means you Paul Martin). But, if you call every ruling you don't agree with "judicial activism" it devalues the entire concept.

It is especially damaging when it is the politicians - who are responsible for the laws in the first place - engaging in this type of rhetoric. If you don't like the law then change it, but don't pretend that judges are doing anything except interpreting the laws as written.

At 7:22 p.m., Blogger Sean McCormick said...

Jass, google 'Rosie Abella' then get back to me on judicial activism, okay? Okay.

At 8:13 p.m., Blogger Ghost of a flea said...

Damian: Well said.

At 8:45 p.m., Blogger Michael said...

"That the testimony that directly implicates those who face fraud trials is remaining under ban is a provision that I think is acceptable, and I will do my utmost to respect it, and ask my commentors to do the same."

As someone who lead the charge to defy the ban, I can agree with you on this one Brooks. Now that details of liberal corruption is out there, the rest is irrelevant. Good call.

At 9:51 p.m., Blogger Sacamano said...


Read my post and get back to me okay?

I did not say there was no judicial activism. I said that the attitude, which you seem to share, that one activist ruling makes all rulings activist is ridiculous.

At 7:57 a.m., Blogger Gordon Pasha said...

of course, if no one had defied the ban, it would have been lifted anyway, right? anyone want to buy some development property in kirkland lake?

At 12:13 p.m., Blogger DirtCrashr said...

If I can just chime-in re: judicial activism - in California under the 9th Circuit Court there have been a number of recent findings and interpretations that are not entirely guided by legal precedent and seem very much equivalent to activist law-making, and not just a single instance.
And legislative activism is one of the reasons Democratic-led judicial filibusters continue in the US Senate - they want activist judges to create favorable rulings.

At 1:12 p.m., Blogger Alan said...

The ban was wrong. The partial ban is wrong. There are still two tiers of freedom - one for anybody who can make it to the hearings or knows someone who is attending, and another for everybody else, who will have to wait several hours for the testimony to be posted somewhere on the web. Heh.



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