Professor Henry Srebrnik

Professor Henry Srebrnik

Thursday, September 30, 2004

Taking a Closer Look at the Selection of Judges

By Henry Srebrnik, [Charlottetown, PEI] Guardian, p. A7

The fall session of Canada's Supreme Court opens on October 4, and the justices will have plenty of controversial issues to deal with, including the landmark same-sex marriage hearings scheduled for October 6-8.

Our Supreme Court now deals with some of society's most emotional matters and so has arguably become the lightening rod of our political system. Indeed, the whole judicial branch of government, traditionally relegated to "third place," after the legislative and executive branches, by students of politics, is now equally important.

Judges themselves acknowledge this. In a recent submission to the Judicial Compensation and Benefits Commission, a body that deals with judicial salaries for 1,100 federally-appointed judges, they noted that "judges are repeatedly called upon to adjudicate on sensitive and contentious matters."

So you can't blame the two Conservative MPs on the parliamentary committee that quizzed Justice Minister Irwin Cotler at the end of August about the two new Supreme Court nominees, for refusing to rubber-stamp the government's choice.

The all-party advisory panel of two legal experts and seven MPs—three Liberals, two Tories, and one member each from the Bloc Quebecois and NDP--was given almost no time to prepare, nor were they provided with much in the way of information about Rosalie Abella and Louise Charron in advance of the meeting.

They also could not directly question the two Ontario Court of Appeal justices, but could only interrogate Cotler, during the single day they met. The justice minister told them that questioning the two judges' qualifications might politicize the process--as if filling seats on the Supreme Court was not already as political an issue as one gets.

Conservative Justice critic Vic Toews called the hearings "an afterthought rather that a genuine consultation," while the party's deputy leader, Peter MacKay, said they were a "sham" that breaks Prime Minister Paul Martin's promise to open the high court selection system. Even MPs who endorsed the two nominees complained about the process. At

best this was a first step towards real scrutiny of the credentials of nominees.

Still, just three days later, the prime minister appointed the two judges to the Supreme Court, saying that the new review process, that altogether lasted less than a week, was "transparent."

This is no reflection on the competence or personal history of these two particular nominees. Indeed, Justice Abella, the daughter of Holocaust survivors who was born in a refugee camp in postwar Germany, is someone whose biography should be a source of pride to all Canadians.

But would a closer examination of the records of the two judges really have mattered, given that the final decision rests with the prime minister? Unlike the American system, where the Senate must ratify judicial nominations, and has occasionally vetoed residential choices, we have no other bodies to exercise oversight or refuse approval of the government's recommendations. We have no real separation of the executive from the legislative branches, no system of effective constitutional checks and balances.

The Supreme Court, which now dictates social and increasingly even economic policy, is today in terms of its outlook little more than a judicial arm of the Liberal Party, and its rulings can be depended upon to forward the Liberal political agenda. It's "Bible," the 1982 Charter of Rights and Freedoms, is itself the child of Pierre Trudeau's Liberal

philosophy of how society should be organized.

But why should we be surprised? Canada for more than a decade has in effect been a one-party state, with little significant political opposition, and naturally those in power pick judges who see things their way. And even though the Liberals now only form a minority

government, they still do 100% of the selecting.

Right wingers who are outraged by the power exercised by the justices and who claim that Canada has become a "judicial autocracy," where judges rule rather than adjudicate, are looking through the wrong end of the telescope. Judges don't control the executive branch, politicians do. Nazi judges and Stalinist judges didn't run Germany and the Soviet

Union; they were picked to legitimize, in the eyes of the populace, the political goals of those in power. The same holds true even in democratic states such as Canada.

This also helps us understand why the Liberals have convinced Canadians that it is somehow illegitimate to use the constitution's "notwithstanding" clause. Why would anyone want to override decisions made by the Supreme Court, if not for nefarious purposes? Of course, unstated in this line of argument is that the court's judgements usually reflect Liberal thinking in the first place.

Think of the convenience: our Liberal government can refer "hot button" issues to the Supreme Court and thus spare itself negative consequences such as voter dissatisfaction and potential loss of seats in an election. Much safer to let the judges, who are beyond the reach of the electorate, do the political heavy lifting.

Americans know that arguably the most important power a U.S. president wields is the selection of judges, and this is one of the main determinants in their choice of a candidate.

Jean Chretien and Paul Martin between them have now selected eight of the current nine Supreme Court justices. If Canadians want their highest court to have a different philosophy of jurisprudence, they must elect a party other than the one in power, so that when future vacancies occur, we will not be offered clones of those already on the bench.