National Post

Monday, August 12, 2002

A Supreme democratic deficit

Jacob Ziegel
National Post

Justice Marie Deschamps, the newly appointed member of the Supreme Court of Canada, is not well known outside Quebec and apparently is not that well known in Quebec either. Nevertheless, it would be quite unfair -- and premature -- to predict how she will perform on the highest court in Canada. It can, however, be claimed with complete assurance that the secrecy surrounding her appointment again proves the total lack of transparency in the selection process for members of the Supreme Court. The process is, in fact, a national embarrassment to Canada's democratic and constitutional values.

This would be true even if the Supreme Court were merely another superior court in Canada's hierarchy of courts. But of course the Supreme Court is much more. It is the final arbiter in all constitutional, criminal and civil law matters affecting the federal government, the provinces and every individual and corporation from coast to coast. The Court is more powerful than the federal Cabinet, Parliament and the provincial governments because it has the power to trump their decisions -- and often it does.

If this is so, why are are we still saddled with such an objectionable selection procedure and what should be done to correct the democratic deficit?

The answer to the first question is historical. Canada's Constitution doesn't even mention the Supreme Court, and the Supreme Court Act, which governs appointments to the Court, was adopted long before Canada became a full sovereign nation and while the Judicial Committee of the Privy Council in London was still the final tribunal for the resolution of questions of Canadian constitutional and private law. Consequently, for many years, appointments to the Supreme Court were treated not very differently from appointments to provincial superior courts and rested ultimately in the discretion of the incumbent prime minister.

The prime minister was not bound to consult Parliament, the provinces, the bar or, for that matter, anyone else, and this still remains true today. Past prime ministers have often used their appointive powers for partisan ends or based them on personal preferences and biases. One would be naive to believe that Jean Chrétien is any different in this respect from his predecessors.

As for the second question, optimally reform of the selection process should be enshrined in the Canadian Constitution together with other essential features involving the Court. However, constitutional amendments are unlikely in the foreseeable future so the changes will have to be made to the Supreme Court Act itself. They have been discussed for more than 25 years. There is near unanimity that, at a minimum, the federal government should be obliged to consult an advisory committee whenever a vacancy arises on the Supreme Court, and should be obliged to make the appointment from among a short list of candidates prepared by the committee. The advisory committee would include representatives from the provinces, the legal profession, academia, and, not least, highly regarded members of the public of national stature.

Another group of commentators (of which this writer is one) also believes that all appointments to the Supreme Court should be required to be confirmed by the federal Parliament, just as the U.S. Senate must give its consent to presidential nominations for appointments to the U.S. Supreme Court. In my view, the role of the Supreme Court has become far too important for the selection process to be confined to an advisory committee and the federal Cabinet. The people of Canada also need to be consulted through their elected representatives.

Reform of the appointive process to the Supreme Court is not only much overdue, I believe the existing system is also unconstitutional. In the seminal Prince Edward Island Judicial Compensation case, the Supreme Court held that the provinces and federal government were obliged to establish compensation commissions to make recommendations with respect to judicial salaries and pensions and to treat the recommendations seriously. The Court reasoned that the public would lose confidence in the impartiality of the judiciary if judges were obliged to negotiate salaries with the federal and provincial executives because the federal and provincial governments are regular litigators before the courts. If the appearance of impartiality and objectivity is important for sitting judges, it is surely just as important for the selection process leading to appointments of judges.

As an English judge once wrote (but in a different context), the well of justice can be poisoned before the river ever begins to flow.

Copyright © 2002 National Post Online