National Post

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Monday, April 19, 1999

Influence of court leads some to call for U.S.-style nominations to bench
Public test sought: Top court appointments should face scrutiny, says professor

Luiza Chwialkowska
National Post

OTTAWA - Concern Over the Increased Influence of Supreme Court Judges Over the Laws Has Many Court Observers and the Public Calling for a U.S.-Style Public Nomination and Confirmation Procedure.

"There is a conspicuous lack of democratic input into the selection of Supreme Court judges," Jacob Ziegel, University of Toronto law professor emeritus, told a conference on the Supreme Court held at the University of Ottawa this weekend.

"Canadians should be able to learn about, see, and evaluate the candidate before his or her appointment becomes a fait accompli," Prof. Ziegel argues. "If the candidate is controversial, all the more reason why his or her merits should be publicly debated while there is still time to do it."

Without naming names, Prof. Ziegel said there had been several "unsatisfactory" appointments to the Court, and that "this was no accident."

However, he said there is little sign that the Prime Minister is dissatisfied with the current procedure.

Prof. Ziegel has recommended a nominations committee that would include the Minister of Justice, representatives of provincial governments, from lawyers associations, and other citizens representatives.

The Canadians Association of Law Teachers and the Canadian Bar Association have endorsed such a nomination procedure in the past. And similar procedures are used for appointments of provincial court judges in B.C., Manitoba, Ontario, and Quebec.

It is an idea that resonated with many of the scholars and lawyers at the conference, hosted by the Institute for Research on Public Policy.

"The open and public scrutiny of the ideas and experience of candidates for high judicial office that occurs in the United States strikes me as much more adult and democratic than the rumour-mongering and gossip carried on in the Canadian media for weeks before the prime minister unveils his choice," argues Supreme Court scholar Peter Russell in the current issue of Policy Options magazine, which coincided with the conference.

The Reform Party has proposed that provincial legislature be responsible for nominations to the Supreme Court and all other courts.

"This is a crazy idea," Prof. Russell wrote in Policy Option.

On Saturday, Prof. Ziegel called the idea "objectionable in principle" as well as "totally unworkable."

However, according to a recent poll, the Canadian public does not consider it so crazy.

The poll, conducted by Paul Howe, research director of the Institute for Research on Public Policy, and Joseph Fletcher, associate professor at the University of Toronto, shows that two-thirds of Canadians admit they do not know who appoints Supreme Court judges. Eight percent of Canadians assumed the federal government does so, and another 12% suggested other wrong answers.

When asked who should choose the Supreme Court judges, the provincial legislatures received the highest support among Canadians. Nearly half of respondents said the task should fall to the provinces -- stronger support than for the prime minister and parliament combined. Only 8% suggested the prime minister, and another 37% suggested parliament for the job.

Prof. Russell dismissed the often-raised objection that qualified candidates would drop out of the Supreme Court race for fear of becoming the subject of public scrutiny.

"A person who is so adverse to public scrutiny, no matter how well qualified he or she may be in a technical professional sense, is not qualified for service on the Supreme Court of Canada" where they will find themselves "under constant public scrutiny," he argued in Policy Options. "Confirmation hearings will rightly eliminate anyone who cannot take the political heat."


Provinces - 47%

Parliament - 37%

Prime Minister - 8%

Don't Know - 4%

Combined - 4%

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