Just how are politicians supposed to deal with a controversial judicial decisions? Lawyers like me are quick to tell politicians what not to say. The justice minister decrying a jury verdict is like having an arsonist for a fire chief! Quick with the quip, lawyers can wrongly assume that the public shares their outrage at political interference with the judiciary. So just how do politicians navigate the terrain between the political and judicial?

Getting subpoenaed by the Hells Angels in 2004 brought this issue out of the clouds for me. It was part of defence motions to have a prosecution tossed out as an “abuse of process.” They argued that the attorney general (me) had attempted to interfere with the trial, based on my public comments to the media. (The subpoena and motion were thrown out because the judge determined my remarks were about organized crime generally, not the Hells Angels specifically. Whew).

While I survived the experience, politically, it was sobering. I’d seen up close the sharp edge of the sub judice rule. The sub what-what? Yes, it’s Latin for (‘before the court’); a common law rule; a parliamentary convention, sometimes codified in statutes governing elected officials. As a former associate chief justice put it, “the sub judice rule … generally prohibits members [of parliament] from referring to any matter that is the subject matter of an ongoing criminal or civil proceeding.”

What’s the big deal? The big deal is that we are supposed to have an independent legal system. It’s not a popularity contest. It’s supposed to be blind to political influence.

Otherwise, we are Russia, where political persecution is what dissidents face. Or we’re Alabama, where judges face popularity contests called elections.

Or we start to experience the riots that have come to characterize post-jury verdict outrage in the U.S., because of their profound loss of confidence in the independence of that system. Because one bad political deed (the seemingly unjust acquittal) deserves a political response (street protests). When politicians purposefully slander the justice system, we risk despotic results: arbitrary justice and mob rule.

And yet. Does the whole judicial system actually topple because Justin Trudeau waxes about the ugly fact of too many unsolved Indigenous deaths, yet too many Indigenous inmates?

That’s what happened twice in Canada over the past month, after (white) defendants were acquitted of crimes (second degree murder) against Indigenous people. It was sufficiently political that both the prime minister and justice minister waded into the fray, in turn sparking criticism (mostly from criminal lawyers) about violations of the sub judice rule.

There is no need to rehash the debate over the propriety of their remarks. Time will tell if they negatively affect any Crown appeals. As for whether they ruined our justice system, I suspect that the insiders still profess its excellence, while outsiders think it has long been rotten.

But here’s the rub. Our legal system is not for public consumption. It’s a system, first and foremost, to protect the innocent. It justifies the acquittal of possibly guilty people in the name of avoiding wrongful convictions.

For the powerful to intentionally interfere with a defendants’ constitutional rights is the height of corruption, in Canada, because our freedom is not supposed to be taken away by the powerful or the connected or the popular. Loss of liberty is only acceptable if there is a fair trial, by an independent arbiter, based on laws, not popularity or lack thereof.

It’s never that simple, however. The arbiter may be born and raised to rule against Indigenous people, knowingly or not. That jury may lack any diversity, which seems horribly unfair. That court decision may be a tipping point, an event of political significance about which politicians tend to comment.

I think it comes down to motive. If a politician goes out of her way to interfere with a legal proceeding, that’s wrong, dangerous, and maybe unconstitutional, thereby making it counterproductive. However, for every lawyer seeking to censor politicians from interfering with the judicial, there are a hundred voters screaming for answers from their elected reps.

Both are right. The job of the elected is to walk that line, between public accountability and unconstitutional meddling. I think that line gets crossed when the elected intentionally or recklessly interfere with a specific case.

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Walking the tightrope has its risks, I’ve learned. Even the prime minister could learn a valuable lesson from former Ontario Premier Bill Davis, known often to say that he never regretted a speech he never gave, nor the media bait he never bit.

Michael Bryant is executive director of the Canadian Civil Liberties Association and was the 35th Attorney General of Ontario.