Monday, August 12, 2002
"A Supreme democratic deficit"
By Jacob Ziegel
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
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
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