Wednesday, January 20, 1999

An opportunity to judge the judges

National Post

In the same week that many demanded psychological background tests for judges -- in light of a British Columbia Supreme Court decision legalizing possession of child pornography -- Canadians learned that Peter Cory, one of the nation's nine Supreme Court justices, may be about to resign.

Jean Chretien, the Prime Minister, recently pooh-poohed the idea of inviting public comment on candidates for judgeships during the judicial selection process. But surely, in a country increasingly ruled by unelected jurists -- many of whom exhibit a penchant for "reading in" laws that don't exist, quashing laws passed democratically on grounds of "public policy," or simply ignoring laws outright -- democracy compels some manner of judicial accountability.

To this end, Canada needs neither the highly politicized U.S.-style confirmation hearings, nor the constraint of Senate veto power over court appointees. What is required is a public process whereby ordinary Canadians get to know the robed sages who decide, among other things, whether paedophiles may freely gaze at naked pictures of their children in the name of "free speech."

Yet most Canadians will have never heard of the two leading contenders to replace Justice Cory. Both are women, and they have been catapulted ahead of the male competition largely due to their surplus X chromosone. Canada's legal community considers two female Supreme Court justices -- the current allotment -- one too few. And whoever is selected must be from Ontario -- or so tradition counsels -- since the province would otherwise be underrepresented.

One of these two affirmative action candidates is Justice Rosalie Abella of the Ontario Court of Appeal. Justice Abella is a fierce proponent of employment equity -- a retrograde policy, opposed by a clear majority of Canadians, which grants job preferences to women and visible minorities. The other candidate is Madame Justice Louise Arbour, currently serving as chief war crimes prosecutor in the former Yugoslavia. Justice Arbour is the self-styled champion of the "new international order" -- which aims to strip nation-states of their sovereign rights and replace them with "customary international law" -- or rule by unelected international jurists.

Why should judicial appointees be required to publicly explain the rationale behind their more controversial opinions? Such a process would offer two major advantages. First, Canadians could publicly protest against judges who depart from their principles. Second, they could evaluate the wisdom of those ministers who select judges -- and subsequently register their approval or displeasure at the ballot box. Either way, democracy wins.

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