Ontario joins Alberta: Rein in top court Give provinces a say in picking judges, Sterling asks in letter to McLellan.
JOHN IBBITSON and STEVEN CHASE The Globe and Mail Monday, October 25, 1999
Toronto and Calgary -- JOHN IBBITSON in Toronto STEVEN CHASE in Calgary
The Ontario government of Premier Mike Harris is demanding a provincial say in the appointment of Supreme Court judges as a means of curbing the court's tendency toward judicial activism -- and has already found support in Alberta for the cause.
Ontario Intergovernmental Affairs Minister Norm Sterling wrote federal Justice Minister Anne McLellan on Friday to ask for "a more public debate on the process of [judicial] appointments at the federal level."
Sources within the government said that Ontario's contribution to the debate would be to propose involving the provincial governments in the nomination of Supreme Court judges.
"Recently, decisions of the Supreme Court of Canada have increasingly shifted toward determining social and economic policy, and it is, for the most part, incumbent on the provinces to implement the changes and carry out these decisions," Mr. Sterling wrote in the letter, a copy of which has been obtained by The Globe and Mail.
"Decisions that have such effects are not in accordance with the public's understanding of the respective roles of the legislators and the judiciary in our parliamentary and legal systems."
An Alberta government spokeswoman said yesterday the province supports the goal of Mr. Sterling's proposal, adding that Premier Ralph Klein's Tories have backed such a move for some time. "We support the concept of having a say in federal court appointments, because the court rulings can have such an impact on provincial legislation," said Fay Orr, spokeswoman for Mr. Klein.
The Saskatchewan government wants Ottawa to conduct "meaningful consultation" with provinces before it makes Supreme Court appointments that might come from the Prairies, Saskatchewan Intergovernmental Affairs Minister Jack Hillson said.
But he said Saskatchewan doesn't expect to be the sole decision-maker in these circumstances. "We want to be consulted when it is, quote, Saskatchewan's turn, unquote; however, we are not demanding in effect that it become an appointment by the government of Saskatchewan. . . . We are not demanding that the federal government could only appoint by a list supplied by Regina."
The Ontario government will be contacting other provincial governments in search of support for a renewed debate on provincial involvement in Supreme Court appointments. It will also raise the issue at a meeting of federal and provincial justice ministers later this year.
Mr. Harris will soon introduce legislation that brings dozens of provincial statutes into conformity with the Supreme Court's decision in M vs. H, which ruled homosexual couples were entitled to the same spousal benefits as heterosexual couples. While refusing demands to use the Constitution's opting-out clause to strike down the ruling, Premier Mike Harris said he disagreed with the federal court's ruling.
The M vs. H ruling and the court's recent decision to grant natives virtually unlimited fishing rights off Canada's Atlantic coast prompted Reform Leader Preston Manning and Alberta Premier Ralph Klein to complain about what Mr. Klein calls "judge-made law."
"Many experts, commentators, and members of the bench and legal profession believe that court decisions are now mandating new policy," Mr. Sterling wrote.
The Supreme Court's Mr. Justice Ian Binnie told law students last week
that the court is compelled to interpret legislation broadly because that is how it is often written by Parliament.
By demanding a public debate, and calling for provincial involvement in the appointment of judges, the Ontario government is attempting to resurrect one of the key provisions of the Charlottetown accord. The agreement, which voters turned down in 1992, would have limited the prime minister to choosing Supreme Court judges from a list of nominees provincial governments provided.
In his letter, Mr. Sterling referred to a study conducted by the Institute for Research on Public Policy, a Montreal-based non-partisan think-tank, that said only 8 per cent of Canadians agreed the prime minister should have sole discretion to appoint Supreme Court judges.
The peace that followed the social-union agreement between the federal and provincial governments, in which Ottawa promised to consult the provinces before proposing programs in areas of their jurisdiction, appears to have been short-lived.
Although the federal government this year restored some of the money it had cut from its transfers to Ontario, Mr. Harris's Conservatives appear determined to continue confronting Ottawa on every possible front.
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