National Post

August 10, 2002

How to pick judges

National Post

With this past week's appointment of Quebec's Marie Deschamps, the majority of Canada's sitting Supreme Court judges have been chosen by Jean Chrétien, the Prime Minister. Martin Cauchon, the Justice Minister, insisted earlier this year that such decisions are made following extensive consultation with senior judges, law societies and provincial governments. But there is no way of knowing to what extent that is true. Court appointments are shrouded in secrecy, and are made entirely at the discretion of Cabinet -- or, effectively, at the discretion of the Prime Minister. Until the moment that Justice Deschamps' selection was announced on Thursday, only a select few were even aware that she was under consideration.

This process -- or lack thereof -- is particularly troubling given the tremendous powers wielded by the Supreme Court. Whereas the high court overturned just one law in the 20 years preceding the creation of the Charter of Rights and Freedoms, it has since become one of the country's most potent political forces. Since 1982, it has set policy on capital punishment, abortion, minority rights, labour law, and countless other issues. It is bad enough that Parliament has ceded much of its responsibility to unelected judges; that the majority of the nine people making these decisions might be unilaterally selected by one man is unacceptable.

Although Mr. Chrétien's appointments have not been reckless, it would be impossible for him not to be motivated by political considerations. And while it would be unfair to conclude that Justice Deschamps was chosen only because of her connections to the Quebec Liberal Party, it would be easier to dismiss this suggestion if she had not been handpicked by a Liberal. More important is the potential for abuse by prime ministers with controversial policies or agendas they wish to ram through without taking political heat. As Vic Toews, the Canadian Alliance's justice critic, stated following Justice Deschamps' appointment: "If the prime minister wants to avoid the entire issue in parliament, all he does is appoint the right judges to the right courts and the courts will make the determination."

Most Canadians appear to have taken notice. Earlier this year, an Environics poll showed that two-thirds favour the election of Supreme Court Justices. Unfortunately, such a change would only serve to further politicize our courts, potentially leading judges to place their own popularity above a correct reading of the law. But that does not mean the public's concerns are unfounded. The more powerful the Supreme Court gets, the more important it becomes for the appointment process to be transparent, thorough and fair.

Surely, there must be a way to make the process more democratic without turning the selection of justices into a U.S.-style three-ring circus. Mr. Toews has sensibly proposed that candidates for the Supreme Court face a parliamentary committee before taking their seats. Toward that end, a caucus colleague, John Williams, introduced a motion last winter that would empower MPs to question the careers, philosophies and political connections of nominees. Rather than the Prime Minister having sole responsibility, the cross-partisan Justice Committee would be able to review each appointee. That seems a reasonable proposal: What better use could there be for a Justice Committee than protecting the integrity of the country's highest court?

Mr. Williams' motion is up for debate next month, and all MPs should give it serious consideration. With Parliament deferring its toughest decisions to the bench, the least MPs can do is take responsibility for who's sitting on it.

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