Chief Justice Glenn Joyal also says he respects the right of governments to make laws, but hopes the reason for doing so doesn't stem from an "inherent distrust" of judges.
"If legislation of this sort is premised upon an inherent distrust in judges being able to do the right thing — which is to say apply the time-honoured principles of sentencing and governing law to a given set of facts, mindful of the facts surrounding the individual offender and the offence — then I reject the premise categorically," he said in an interview with The Canadian Press.
"But there's a difference between rejecting a premise for that type of concern and the legislation. Parliament has a right to do what it feels it has to do. If it at some point it is challenged constitutionally ... then judges have a right to assess it.
"Does it curtail, obviously, the discretion of a judge if that type of legislation exists? Certainly. Is that a good thing? I leave that for someone else to respond to."
Some planks of the government's tough-on-crime agenda have already been rejected by the courts. An Ontario judge struck down a three-year firearms trafficking mandatory minimum sentence for a crack dealer who offered to sell an undercover police officer a gun. Another Ontario judge struck down a three-year minimum sentence for a first offence involving illegal possession of a loaded gun.
Joyal granted one-on-one interviews with the media Thursday and addressed issues ranging from minimum sentences to legal aid to a public perception that criminals get off easy.
"I think the judiciary perhaps has to do a better job in providing public information about how it performs its various roles, including the sentencing role," he said to explain why he feels it important to speak out.
More openness could actually help address the perception that criminals get off lightly, he suggested. He pointed to some online news sites that provide links to full court decisions. Joyal has also supported the idea of allowing cameras in courtrooms — in some instances such as sentencing decisions — as a way to better inform the public.
Joyal also touched on the growing number of people who come before the courts representing themselves. He agrees with comments made in the past by Supreme Court of Canada Chief Justice Beverley McLachlin that the cost of hiring a lawyer is becoming too expensive for many Canadians and legal aid only helps people on low incomes.
"That unfortunately is a difficult problem that government is grappling with, as are the various legal aid agencies across the country," he said.
"I've had some ... discussions with high-ranking representatives from legal aid in Manitoba and ... we discussed some solutions that we hope to put in place in the area of criminal law ... hopefully sometime very soon.
"It is all about, I'm afraid, the tough fiscal choices government is facing, and all I can do is urge what I think are very good-intentioned public officials to continue to be aware of the problem that exists, and if necessary find a way to find the money necessary to come to a solution."
People who represent themselves can add to the backlog in the courts because they need instruction on how to proceed, Joyal said. In Manitoba, courts have moved to reduce the backlog through administrative measures. For instance, pre-trial hearings for criminal cases can help narrow the issues to be debated at trial.
But high case loads remain, especially in the province's north, Joyal said.
"The backlog there is serious and we're talking about (outlying) communities that need to be serviced. There's a disproportionate number of aboriginal individuals who are just waiting in custody for their trial."
Joyal, who was appointed chief justice last year, would not discuss in any detail an inquiry by the Canadian Judicial Council into one of his associate chief justices, Lori Douglas.
The council is investigating whether Douglas should be removed from the bench because her husband uploaded sexually explicit photos of her to a website almost a decade ago. Douglas is accused of not divulging the fact when she was appointed a judge and of sexually harassing a man named Alex Chapman who was shown the photos by Douglas's husband.
"I have every confidence that the final result — the final report that will be presented to the Canadian Judicial Council — will be clear, it'll be comprehensive, it's going to be rigorous and, most importantly, it's going to be transparent."
So is it fair to make judges accountable for actions in their private lives and to hold them to a higher standard?
"All I'll say is that the judiciary and its legitimacy depends upon the public trust and the public respect. And (judicial council) inquiries ... are designed to preserve the public confidence and ... ensure that the judges in question have a continuing capacity to execute their duties.
"It'll be for the (inquiry) committee to decide."Suggest a correction