Canadians deserve a say in choosing Supreme Court
Ottawa needs to restore public confidence in judges

Tue Jan 3 2006

By Tasha Kheiriddin

THE Supreme Court of Canada is the ultimate arbiter of law and justice in our country. As evidenced by its recent decisions on the same-sex marriage reference and the health care case of Chaoulli v. Quebec, it can have a profound impact on laws affecting the day-to-day lives of Canadians.

And who sits on the court can have a profound impact on its decisions.  This was never so clearly evidenced as in 1981, when prime minister Pierre Trudeau asked the court to rule on his proposal to unilaterally patriate the Constitution. Seven of nine judges found the proposal legal; of these, all had been appointed by Mr. Trudeau.  The two dissenting ones had been appointed by prime minister John Diefenbaker.

The judges are selected by what is probably the least accountable and transparent process for any body of this importance.  Currently, our Constitution gives the prime minister complete discretion to appoint whomever he chooses.  There is no requirement for a review committee, no list of recommendations, and no obligation to consult anybody.  Apart from regional balance (the Constitution mandates that Quebec gets three out of nine judges, by virtue of its civil law tradition), the matter of who dons the scarlet robe is completely up to the PM.

During the last round of judicial appointments in 2004, the government did constitute an all-party committee to hear about � but not from � the two proposed nominees, Rosalie Abella and Louise Charron.  Neither was compelled to testify before MPs or answer any questions.  Contrast this with the American system, where Supreme Court nominees must face a gruelling committee hearing, complete with thorough questioning in front of television cameras, a judiciary committee vote, and then a full vote of the United States Senate before being confirmed.  And this comes only after the president consults senators on who to nominate.  If President George W. Bush's failed nominee Harriet Myers was up for consideration in Canada, she would probably have landed on the high court instead of in hot water.

The Canadian legal community has repeatedly called for reforms to the appointment process.  Voters should remind politicians, however, that justice is not the exclusive purview of lawyers and legalists.  What is missing is the voice of Canadian citizens, who just happen to foot the bill for the entire justice system.  And that system does not come cheap.  The last time Statistics Canada checked these things in 2000/01, more than $1 billion was spent annually on the operation of Canadian courts.  This included the employment of nearly 10,000 court staff and 2,000 judges, over half of whom were appointed by the federal government.  Salaries and benefits paid to this judiciary totalled $382-million � an average of $191,000 per judge.  Public funding brings with it certain expectations, including accountability and transparency.  But if an appointment is made behind closed doors, no one can be held accountable until after the fact � when it is too late to do anything about it.  Small wonder then that Canadians are cynical about their courts.  According to an Ipsos Reid opinion poll taken in March 2003, a majority of respondents said they did not trust judges or the judicial system.  Even more disquieting is the finding that two in three people polled think Supreme Court judges are influenced by partisan politics.  Such a perception erodes confidence in the judicial system, and puts into question the leadership of those who appointed judges in the first place.

The prime minister must go further than a rubber-stamp committee if he is to increase judicial accountability and transparency.  He should institute an open appointment process that lets Canadians judge the judges for themselves before they are chosen.  He should also introduce term limits for judges as several European countries have done, so that no one administration can stack the bench indefinitely.

(Former prime minister Jean Chr�tien appointed five of the current nine judges � two of them will not retire until 2022 and 2028).

And to truly ensure regional representation, he should rebalance the court to ensure that Quebec does not have an over-representation in terms of population and caseload heard.

Taken together, such reforms would go a long way to restoring public confidence in the Supreme Court and ensure that Canada benefits from the best and most accountable legal system possible.

Tasha Kheiriddin is Ontario director of the Canadian Taxpayers Federation.