National Post

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Thursday, December 23, 1999

Man of the moment
National Post

Louis LeBel, an unknown 61-year-old from Quebec, is now more powerful than most of Canada's provincial premiers. He certainly has more influence than the average cabinet minister.

That may sound surprising, considering Mr. LeBel's anonymity, but his secretive rise to power is actually a Canadian tradition: He is the latest appointment to our Supreme Court.

Jean Chretien alone chose Mr. LeBel. No one knows what political discussions they had, or if the judge made any promises to secure his appointment. The public's only role in his rise to power was to read about the appointment of this judge-for-life in their morning newspapers. Mr. Chretien's curious assurance, that Mr. LeBel is "the best to fill the job at the moment," is hardly a proper substitute for public scrutiny.

What are Mr. LeBel's views on Quebec secession? What is his definition of the family? What does he think of property rights? Of aboriginal rights? What is his view on the proper demarcation of powers between Ottawa and the provinces? Or between the courts and Parliament?

These are fair questions for the ruled to ask of potential rulers; they are questions that our elected politicians must answer all the time and, in particular, on the election hustings. They are also questions answered by U.S. Supreme Court nominees, who must appear before a ratification committee in the U.S. Senate and survive a vote in the Upper House. No such democracy is permitted in Canada, even though our courts are now every bit as partisan and activist as those to the south.

Mr. LeBel himself cannot be faulted for this. The blame lies squarely with the prime minister and with Anne McLellan, the Justice Minister. It is telling -- and disgraceful -- that their announcement of this appointment comes just days after Parliament broke for the winter, conveniently avoiding the scrutiny of the daily Question Period.

Ms. McLellan has repeatedly defended this undemocratic system of appointment, even after Gerard LaForest, a Supreme Court judge who retired two years ago, requested that his replacement not be chosen through a back-room deal. Ms. McLellan ignored this plea, and appointed Michel Bastarache, a political activist who chaired a "Yes" committee during the Charlottetown Accord era, and a partner at Mr. Chretien's old law firm.

Her justification of this unrestrained patronage is that it has been done this way for 130 years. True enough -- though that is an odd argument from the justice minister who has never met any other social institution she has not sought to undermine and who favours overturning the traditional form of marriage, which has been around for considerably longer than 130 years.

What Ms. McLellan also ignores is that the Supreme Court of 130 years ago was not the activist creature of today, which has exploited the Charter of Rights and Freedoms to give itself legislative powers never contemplated by the Charter's framers. If we have a political bench, then we must have democratic selection and accountability along with it. Anything less is unworthy of a free people.

Whether or not Mr. LeBel is likely to be a suitable judge -- a question to which we will return -- has yet to be decided. But the process by which he has ascended to his throne is both secretive and undemocratic and it should be unacceptable.

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