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Editorial: Out of bounds

Supporters of Marjorie Flowers, Jim Learning and Eldred Davis outside Her Majesty’s Penitentiary in St. John's, July 23.
Supporters of Marjorie Flowers, Jim Learning and Eldred Davis outside Her Majesty’s Penitentiary in St. John's, July 23.

For days, while a trio of Muskrat Falls protesters sat in jail, there was a public call for Premier Dwight Ball or Justice Minister Andrew Parsons to step in and release them. Five federal senators joined the fray, calling on the province to release the protesters. But the provincial politicians didn’t, and in fact, they couldn’t.

Here’s what Parsons said about the case in a news release: “The judiciary is completely independent of the legislative and executive branches of government. It is fundamental to this independence that the judiciary and judicial system are not subject to political interference and are neither answerable to nor subject to instruction from the attorney general in the conduct of proceedings before it.”

And he’s right. (It’s surprising, in fact, just how glibly the senators glossed over that fact when they wrote their letter calling for the protesters’ release. Simply put, they should have known better.) Politicians should not be able to reach into the justice system at will. Politicians and governments make laws. It is only the courts that decide how those laws apply, who goes to jail, and when.

How important is that separation?

Well, in Ottawa, it’s a so crucial that even the appearance of a connection between the courts and government can’t occur.

The building that houses the Supreme Court of Canada is set to be renovated, and the court is to be moved to a building known as the West Memorial Building. Next door is the East Memorial Building, the home of the federal Department of Justice. And between the two are an elevated pedestrian walkway, and an underground pedestrian tunnel.

But the court and the government take their separate duties so seriously — and consider them to be such a central part of their roles and functions — that both walkways are to be blocked with walls for the entire duration of the Supreme Court’s stay.

The walls are being built “to ensure the physical separation of the Supreme Court of Canada in the West Memorial Building from the federal judicial functions within the East Memorial Building,” Jean-François Létourneau, a spokesman for Public Services and Procurement Canada, told CBC News. “This is to ensure the conceptual and operational independence of the Supreme Court of Canada is maintained during their interim occupancy.”

Apparently, even the simple symbolism of an open walkway counts.

Some have argued that Premier Ball should have ordered Nalcor Energy to drop its injunction, a move that would have meant the three protesters would no longer have to agree not to violate the injunction, and therefore remove the reason for their imprisonment in the first place.

But even that would not have released the trio.

Only a judge could do that.

And that is precisely the way the system has to work.

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