Globe and Mail

Because judges govern, they must be known

Private appointment to the Supreme Court is fundamentally offensive to democracy

Friday, March 5, 1999
The Globe and Mail

How much public scrutiny should a person endure before appointment to one of the most powerful positions in our democracy -- the Supreme Court of Canada? None? That is essentially how much public scrutiny occurs now, which is wholly inadequate.

Mr. Justice Peter Cory of the Supreme Court disagrees (as do many lawyers). In a thoughtful interview with The Globe and Mail's Kirk Makin this week, Judge Cory asked: "Do you want to appoint someone who is pro-this, or anti-that? If so, this becomes a purely political forum. It will no longer be a judicial or judicious one. Do you want to get rid of the judicial aspect and appoint people from your own party who will do exactly what you want them to do? . . .

"What are you going to ask the candidate? Are you for abortion? Are you against abortion? Are you more inclined to go with the federal government or the provinces in a case involving the division of power?"

The answers to these questions are quite simple:

No, we do not want to appoint someone who is pro-this, or anti-that.

No, we do not want to appoint people from our own party who will do exactly what we want them to do.

We do not propose to ask the candidate her or his views on abortion or whether they are biased in favour of one level of government in regard to the constitutional division of powers (though someone else might).

What then do we want?

We want a chance to get the measure of candidates for the Supreme Court in a number of overarching ways:

How smart are they? Intelligence matters at the highest levels of the judiciary. The public has a right and duty to be satisfied on this count.

How broad is their experience in society outside the formal practice of law? The Charter of Rights and Freedoms requires judges to set "reasonable limits" on how far Parliament can go in reducing fundamental freedoms and rights, based on what is "demonstrably justified in a free and democratic society." Judges need to be in touch with social values if they are to assess "reasonableness" properly and to have diversity of experience beyond the profession. The public has a right and duty to be satisfied on this count.

Do they bring a strong sense of mission to the bench on substantive matters likely to be adjudicated there? While objectivity is fool's gold and an open mind cannot compensate for an empty one, the ability to listen, to hear, to reflect and to follow the dictates of fact, logic and the law to their own conclusion is essential to the role of a judge.

If candidates for the Supreme Court are well-established warriors for a social or political cause, or have an unusually robust view on the proper relationship among the courts, the legislatures and the citizens, it could affect their judgments to a worrisome degree. The public has a right and duty to be satisfied about the potential for such influence.

An all-party committee of the House of Commons and Senate should publicly interview any Department of Justice candidate for the Supreme Court and attach its views to the nomination on its way to the cabinet for decision. This would allow informed public discussion but leave the decision in the hands of the government, which remains responsible to the voters in our system.

Might there sometimes be rude or inappropriate questions? Of course. A good candidate will either handle them elegantly, or properly refuse to answer them. Would our public process descend into the worst of the American example, where highly partisan and socially polarized inquisitions sometimes occur? That is unlikely in our political culture, but the condition of freedom is risk, as a condition of democracy is knowledge.

Any person appointed to the Supreme Court of Canada should welcome a public consensus that -- given the power judges exercise, and the issues judges consider -- the means of their selection is legitimate and their personal credibility is secure.

If judges are to govern us -- and they do -- it must be with an adequate degree of our consent. A chance to meet candidates before we appoint them to a high court where they can serve until the age of 75 is entirely judicious. Judge Cory is retiring in June; it's time to consider his successor with due respect for the citizens whose interests are at stake in the choice.

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