Edmonton Sun

Sunday, May 23, 1999

Supremes now rule the land

By TED BYFIELD
The Edmonton Sun

We learned this month that Madame Justice Louise Arbour of the Ontario Court of Appeal is about to become one of the nine rulers of Canada, meaning she will be named to the Supreme Court. We are not permitted to know, of course, anything much about the madame justice - what she thinks, believes, espouses, champions, defends, denounces, opposes or sympathizes with.

It would be "unCanadian" to even ask such questions publicly, let alone expect answers to them.

We will only discover these details after she is ensconced in office, over-ruling elected legislatures and Parliament, the sort of things that are now routinely expected of Supreme Court judges. If she were running for Parliament we could ask her such questions. If she were a mere cabinet minister, she could be made to stand questioning in the House.

But in the new Canada, we do not regard it as fitting to ask judicial candidates such tawdry political questions, even if as judges they are continually called upon to dictate the laws under which we shall live. Of course in the pre-charter, old Canada, we didn't have judicial review of appointees, either. But in those bad old days our laws were almost entirely made by elected politicians. Now under the bright skies of the new Canada, we have rid ourselves of the sordid wrangling of democracy and instead live in the clean air of authoritarian despotism.

We are being told: This woman with her eight colleagues will decide what your laws shall be. Whatever she believes is none of your business. Just do as she says and shut up. That's why we call it the Charter of Rights and Freedoms.

In the next year or so, therefore, the madame justice will decide among scores of other things:

And on and on. To an American, such a situation as ours would be absolutely unthinkable. They too have an all-powerful Supreme Court but they also have a provision that severely restricts who can become a member of it.

Nominees must be approved by a two-thirds vote of the Senate. And the Senate is Triple-E - elected, equally representing the states, and effective in that it can and often does block the House of Representatives (the equivalent of our House of Commons) and also the president (roughly the equivalent of our prime minister.) Moreover, nominees are submitted to an exhaustive and public examination before a Senate committee in which all their views can be explored as well as their past experience. The senators would be interested to know, for instance, that Madame Justice Arbour like others of our Supreme Court judges has never actually practised law. She was more on the academic and bureaucratic (read: ideological) side of law. Her latest post, for instance, is as an international prosecutor in the Balkan war.

Chief Justice Antonio Lamer has, needless to say, denounced the whole idea of such confirmation hearings for judges. They would accomplish nothing, he said, except the "embarrassment" of the candidates. So we in the purity of the new Canada do not have confirmation hearings, nor even a Senate worthy of the name. Instead we have developed another method of appointment as follows:

Step 1: The PM privately tells the luminaries of the legal profession what kind of candidate he wants - one who can be assured of making the right ideological decisions through the courts, so the government won't have to make them in the House.

Step 2: Several candidates are proposed and the PM privately picks the most promising individual.

Step 3: The name of the candidate is leaked go the press, to measure public response to the appointment.

Step 4: If there's not too much flak, the appointment is privately made and our new ruler takes office. Madame Justice Arbour, welcome to the club.

Copyright 1999, Canoe Limited Partnership.