Globe and Mail

A better way to appoint Supreme Court judges

The public should have a say in who sits on the highest court in the land

Monday, May 17, 1999
The Globe and Mail

All signs point to Madam Justice Louise Arbour's appointment to the Supreme Court of Canada to replace Mr. Justice Peter Cory when he retires from the bench next month. She may well be a fine choice, but the means of her selection -- ultimately by prime ministerial fiat -- is completely outdated.

Judge Arbour is bilingual and a specialist in criminal law and human rights. She graduated from the University of Montreal in 1971, spent a year as a law clerk to Mr. Justice Louis-Phillipe Pigeon at the Supreme Court of Canada, and acted as a research officer for the Law Reform Commission of Canada. She was appointed to the Ontario Court of Appeal in 1990, after three years as a Supreme Court of Ontario judge.

Her recent international experience as chief war-crimes prosecutor for the United Nations International War Crimes Tribunals for the former Yugoslavia and Rwanda, and her human rights credentials are impressive. If she is given the nod, she will become the third woman on the nine-judge court. And while she would represent an Ontario appointment, she is well-versed in Quebec civil law.

This said, the public knows hardly anything about Judge Arbour's legal values. What principles drive her analysis of the Charter of Rights and Freedoms? What has she written about the relationship between legislatures and the courts? By what references does she weigh individual rights against the interests of the community and the state? What can we say about the quality of her intellect in light of what she has written in the past?

The closed, pre-emptive selection process for selecting judges in Canada deprives the public of any meaningful chance to explore and discuss these critical questions. The process of selection should change.

When a vacancy to the Supreme Court arises, the Minister of Justice should issue a public call for nominations. After consultation with the legal community, the Minister's nominee should be proffered for consideration before a joint committee of the House of Commons and Senate. That would provoke a thorough public exploration of the nominee's legal record, which would inform his or her appearance before the committee.

After a public hearing, the committee would send the nomination back to the Minister of Justice, with whatever non-binding comments or reports it saw fit. The Cabinet would then decide whether to confirm or reject the nominee.

Is this the American system, which has sometimes fallen to extremes in confirming nominations to the U.S. Supreme Court? No. The committee would not have the power of rejection, and this is not the United States.

Canada's parliamentary system is one of responsible government, where the party in office is held accountable for all its decisions, including appointments to the courts. And Canada's polity eschews the extremes of the American political system, where checks and balances can come to stand for rigid definitions of right and wrong.

Since the Charter of Rights and Freedoms came into effect in 1982, the role of our courts has changed. The courts now assess the reasonableness of many provincial and federal statutes against the rights of individuals to free expression, security of the person, fair trials and equality. The courts necessarily and happily exercise far more power in our political system now than ever before. It is simply improper for a few people in government to determine who should exercise that power without public notice or opportunities for public debate.

Madam Justice Arbour would be a fascinating nominee for the court. Out of respect for Canadians, and for the principles of Canadian democracy, Judge Arbour, or anyone else who is invited to sit on the Supreme Court, should request an opportunity to meet publicly with parliamentarians before accepting the invitation. We need not wait for the Prime Minister to accept the argument for change; the nominee can make that happen herself.

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