New system to elect our top judges still elitist
Nov. 15, 2005. 01:00 AM
The shortcomings of the Canadian system for appointing judges to our highest court have been apparent for some time now. The system is secretive, elitist, and profoundly undemocratic.
This mattered less when constitutional law was concerned only with federalism disputes — arguments about which level of government, federal or provincial, had law-making authority.
In the Charter era, however, constitutional law is dominated by the most hotly contested social and moral questions. The Supreme Court is at the centre of Canadian public policy, ruling on the constitutionality of everything from euthanasia to same-sex marriage and medicare.
The power of the court over not only law but social policy is clear and the need for reform of the appointment process has never been more obvious.
Prime Minister Paul Martin promised reform to make the system more open and accountable. But when he appointed Rosalie Abella and Louise Charron to the Supreme Court in 2004, all that Canadians received was an after-the-fact briefing from Minister of Justice Irwin Cotler.
Abella and Charron were simply the best, the minister insisted, as though he were a detached, objective observer of the exercise of his own government's power.
The process was a farce, but for the next appointment a new process has been developed. The justice minister has appointed nine people to review a list of candidates the government may be willing to appoint to fill the upcoming vacancy on the Supreme Court.
Cotler's list was created in secret and will now be discussed in secret: The committee is to meet in private and pare the list from six candidates to three, without ranking them. The Prime Minister will then appoint one of the three, unless he chooses not to.
There is so much that is wrong with this system that it is difficult to know where to begin. Start with the "blue ribbon" advisory committee Cotler has named.
It includes, as it should, an MP from each of the political parties.
The problem is that the MPs' roles are minimal. Not only are their terms of reference limiting, but they are not the only ones on the committee. The committee also includes a practising lawyer, the dean of a law school, a retired judge, an aboriginal rights activist, and a person who holds a senior administrative position at a university.
I mean no disrespect to the non-elected people who have agreed to serve on this committee when I say that I am not interested in their views about who should sit on the Supreme Court. They have no democratic mandate, and their opinions are no better than anyone else's in any event.
Cotler met in private with the committee to discuss its role, and its members have been sworn to secrecy. They cannot discuss their deliberations or the names of those whom they consider. They are to report by Friday, but no one will know what they have done, or why they have done it.
This is what passes for reform of the judicial appointment system in Canada, and it is an insult. The new system fails to address the most fundamental problem in the appointment process — the power of the Prime Minister and his justice minister to shape the Supreme Court.
By the time he left office, Jean Chrétien had appointed seven of the Supreme Court's nine members. Martin, leading a minority government, has already appointed two and will soon appoint a third. The judges they appoint can, if they choose, serve until age 75. They will, in other words, be on the court long after the prime minister who appointed them is a memory.
Indeed, given the trend toward appointing judges at an earlier age, the next appointee to the Supreme Court could sit for 25 years or more.
The significance of the appointment power cannot be overstated. After all, the court operates by simple majority: five justices beat four at decision-making time. A single justice may be the difference between a holding of constitutionality and unconstitutionality.
Americans understand the power of their Supreme Court and as a result scrutinize nominations to that court carefully. Intense public debate over her qualifications led to the withdrawal of Harriet Miers' nomination last month. Ironically, President George Bush's difficulties in filling a seat on the court receive greater attention in Canada than the vacancy pending on our own Supreme Court.
Cotler would like us to believe that public scrutiny politicizes the appointment process and risks undermining the independence of the judiciary.
He would like us to believe, too, that he has no political motivations at appointment time and that appointments are made simply on the basis of merit.
There is no reason to believe any of these claims. So long as the public does, however, we will not see meaningful reform of the appointment process.
Grant Huscroft is a professor of constitutional law at the University of Western Ontario.
© Toronto Star 2005