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Thursday, November 04, 1999

Judicial reform overdue
Once again, let's consider confirmation hearings for judges
Ian Hunter
National Post

Tinkering with the method by which Supreme Court judges are appointed will not reverse Canada's slide into judicial autocracy. The cause of that slide is the Charter of Rights; until the charter is repealed or amended (either of which would require constitutional amendment, a process made deliberately difficult by the Constitution Act, 1982) it is judges, not elected members of Parliament, who will decide the significant issues of Canadian public policy.

However, changing the way in which Supreme Court judges are appointed just might improve the calibre of the bench, and that is a worthwhile objective. The Chretien government announced yesterday that Beverley McLachlin will replace Antonio Lamer as chief justice; the government will make a new appointment to the bench in January when Judge Lamer retires.

Supreme Court appointments are made by the Governor in Council (a lawyer's five-dollar word for the cabinet); in practice they are made by the prime minister. He need consult no one. There is no parliamentary scrutiny before the appointee assumes what is, arguably, the most powerful position in the land. The Judge's Act requires only that an appointee be a barrister of 10 years' standing. When Justice Peter Cory stepped down, Prime Minister Jean Chretien had a free hand to name a replacement. To the surprise of no one, he chose Louise Arbour. Whether this was a good or a bad appointment is not the issue; the issue is the secret and unaccountable way by which the appointment was made.

Jacob Ziegel, a professor emeritus at University of Toronto law school and the Institute for Research on Public Policy, recently published a study that acknowledges the undemocratic nature of our appointment procedure and offers two constructive models for reform.

The first model envisages the creation of a Supreme Court nominating commission. This body, which would include representatives of the federal and provincial ministries of justice, would draw up a short list of suitable candidates from which the prime minister would be required to select one. There is room for debate about the size of the commission (Professor Ziegel suggests nine members) and its precise composition (e.g., should elected MPs be eligible for membership?) but these are matters of detail.

What sort of person would the commission be looking for? Here is Professor Ziegel's wish list: "complete personal integrity; robust health; industriousness and good work habits; a sense of collegiality with other members of the court; ... an excellent intellect and fine writing skills to match; a deep understanding of the Canadian Constitution and the charter, and of the role of law in general in contemporary Canadian society; and not least, keen discernment in being able to project the consequences of a judgment on to a broader canvas."

To find candidates possessing such attributes, the nominating commission would take suggestions as well as seeking prospective appointees. All candidates would be interviewed before being recommended.

The second model of reform, confirmation hearings, could be used in conjunction with a nominating commission or as a stand-alone model.

This would require that all Supreme Court appointees be confirmed by a committee of the House of Commons or by a joint Commons-Senate Committee.

Like Professor Ziegel, I used to be an opponent of confirmation hearings. Like him, I have changed my mind -- partly because of the intensely political role the Supreme Court of Canada now plays. On this point, Professor Ziegel's logic seems to me unanswerable: "If candidates for the office of prime minister are expected to expose themselves to close public scrutiny, why should we require less of a nominee for the Supreme Court, who is likely to remain in office long after the appointing prime minister has disappeared from the public scene and who, in many respects, wields as much power as the prime minister and with less accountability?"

The strongest opposition to confirmation hearings appears to come from sitting members of the court. They say it would politicize appointments and threaten judicial independence. But the court is already politicized. And Professor Ziegel convincingly disposes of the red herring of independence.

Our secret and unaccountable method of judicial appointments is an anachronism. But expecting the Chretien government to move from its position of terminal inertia is like expecting slugs to pole-vault.

Ian Hunter is professor emeritus in the faculty of law at the University of Western Ontario.

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