One of Stephen Harper’s early tasks will be to name a new judge to the Supreme Court of Canada to fill the slot opened by the retirement of Mr Justice Jack Major. This will prove a major test of the kind of government he intends to offer Canadians.
Who gets on the Supreme Court may seem an obscure matter. After all, they just interpret the law, whereas our elected representatives make it. As long as we get to elect our lawmakers, shouldn’t we be content with letting them make the other decisions, like who gets to be a judge?
That in fact was precisely our constitutional theory and practice for many years. Parliament and the provincial legislatures were supreme in their respective spheres. Judges interpreted the laws that parliament and the legislatures passed, but if our elected representatives didn’t like a ruling, it was always open to them to change the law. Even the written constitution of 1867 didn’t put limits on what our elected representatives could do, but mostly was concerned with which elected representatives (federal or provincial) could do what.
Adding the Charter of Rights and Freedoms to the Constitution in 1982 changed all that. This was indisputably the most Americanizing innovation in our system of government since the original federal-provincial division of powers. The Americans, unlike the British who inspired our political institutions, believed that there were rights that should not be infringed by any government, no matter how democratically elected. So they wrote down a Bill of Rights and gave the Supreme Court the power to enforce it, as well as the other provisions of the Constitution.
But unlike Canadians, the Americans saw clearly the consequences of what they were creating. They knew that the Supreme Court would, by its nature, be called into conflict with the elected Congress and presidency. And since they were attempting to create a democratic republic, this concerned them. How could the legitimacy of the court’s decisions be protected when sometimes the judges would be called on to frustrate the clearly expressed will of the majority? The Americans concluded that an important way to deal with this problem was through the appointment process.
By making the President seek the approval of the Senate for his judicial nominees, the framers of the American Constitution were not trying to politicize the court; that had already been done by the powers granted the Supreme Court. Rather the approval process was designed to ensure that the judges on whom such great power was to be conferred were acceptable to the people’s representatives.
While there is the occasional circus at the Senate hearings, Supreme Court vettings have, on the whole, been pretty tame affairs. Thanks to them, much more is known by politicians, the media and the public about Supreme Court nominees than is known in Canada. And if you are going to give judges the power to overturn the laws of parliament, it seems fair to ask what kind of people are being granted this power. That is exactly the question the Conservatives have been asking for years with respect to Canadian Supreme Court judges, who are named by the Prime Minister alone following a secret vetting process.
And far from giving us a depoliticized judiciary, this unaccountable back-room appointment process has given us a judiciary where roughly 90% of all political donations made by federal judicial appointees in Ontario and Quebec since 1993 went to the Liberal Party of Canada. So much for diversity.
The real conservatives (that is to say those who like the status quo just fine) are rattled at the thought that the new government might actually do something to change the appointment process. Supreme Court Chief Justice Beverley McLachlin, for example, has already come out against parliamentary scrutiny of appointments.
Her argument comes in two parts. On the one hand she says that the Supreme Court of Canada is not supposed to be a “mirror” of parliament. But then neither is the supreme court supposed to be a mirror of the prime minister, who now exercises an unfettered right of appointment. The American approach, recognising that judges are to have immense power, is to make the appointment power more diffuse, broad-based and democratic. It is not the American process that is extreme and unbalanced, but rather the Canadian.
Her other argument is that the Constitution now confers the appointment power on the prime minister and we should stick with the Constitution. But this is an embarrassingly shallow view. The prime minister doesn’t pull appointments out of the air, but is already assisted by the Department of Justice, senior members of the legal community, and others, all behind the scenes. There is nothing improper or unconstitutional in making the process more open and more consultative and involving members of parliament in naming a judge who may sit on the court for 30 years or more, deciding cases that will shape Canadian society in powerful and unpredictable ways.
Brian Lee Crowley is president of the Atlantic Institute for Market Studies. He can be reached through BrianLeeCrowley@AIMS.ca