Supreme disappointment?

An electoral campaign dominated by talk of coalitions, corporate tax cuts and care for seniors has sidelined an issue crucially important to the future of the country: court appointments to Canada’s highest judicial body.

With four of nine Supreme Court Justices approaching the mandatory age of retirement in the next four years, and eight of nine eligible for retirement with full pension by the end of 2011, Canada’s next Prime Minister will likely wield an inordinate influence over the country’s judicial landscape for years to come.

In Canada, the Prime Minister appoints judges to the Supreme Court with no formal checks and balances. While the Supreme Court Act requires that three of the nine judges be from Quebec and that all nominees must have been members of the bar for at least ten years, the appointment process is otherwise uninhibited.

This leaves Canada’s Prime Minister with unchecked power to choose the individuals who will make definitive judgments on abortion, national security and religious freedom among other contentious issues. Long after the Prime Minister has held office, judges with no term limits will continue to make policy that affects the lives of future generations.

So, given this startling number of imminent Supreme Court vacancies, why have judicial appointments been a sleeper issue during this campaign?

First, in Canada media coverage of political culture does not normally extend to the judiciary and Canadian new sources have few, if any, justice reporters.   This stands in stark contrast to the Unites States, where Supreme Court Justices border on celebrity status (consider the media coverage of Sonia Sotomayor’s nomination).

Can you name all of the people in this picture? Canadian Supreme Court Justices

Second, despite the fact that Supreme Court rulings have a profound effect on our lives, judgments are notoriously long, dull and academic, and most Canadians are more interested in clipping their toenails than following the procedures of this far-removed institution.

Finally, there is the unavoidable fact that reforming the judicial appointment process is a complicated issue no matter how you shake it.

Critics of the Canadian appointment process have lobbied the government to reform the current system to resemble the more democratic US system of appointment where   nominees must be confirmed by the senate, which holds veto power.

In Canada, leaving the confirmation to our unelected senate would do nothing to improve the democratic value of the process. Bestowing the confirmation on elected legislators would be equally fruitless since the Prime Minister’s party holds the most seats in the House of Commons and, with the crack of the party whip, the PM’s nominations would likely go unchecked.

Detractors of the US-style process are also quick to point out that including legislators, while more democratic, would render the process a legitimately partisan affair. The independence of the judiciary may be compromised when the process is politicized and party preference for Supreme Court Justices plays an accepted role in the process.

Heeding to criticism about the democratic deficit, in recent years the executive branch has taken minor steps to reform the unchecked Canadian appointment process.

In 2003 Prime Minister Paul Martin altered the process by initiating a parliamentary committee to review nominations, and Prime Minister Stephen Harper followed suit by allowing the committee to question Supreme Court nominees—a commonplace practice in the US but a first in Canadian history.

Ultimately, however, the committee’s role was simply a perfunctory one, as the committee was carefully instructed as to what types of questions they could ask nominees, and accomplished nothing in fundamentally altering the appointment process.

Although these superficial changes to the appointment process have been disappointing, we should not be discouraged from pursing a more meaningful type of reform.   A major step in this endeavor is to cast the net of possible reform options beyond the usual reach of our Southern neighbour to consider how other countries proceed.

In Australia for instance, there must be consultation with the Attorney-Generals of the states and territories, which offsets the executive’s concentration of power.   The United Kingdom, while not operating under a charter, takes a distinctly non-political approach to High Court appointments by forming a selection committee, which includes significant lay representation, each time a vacancy arises.

While far from perfect, both countries’ appointment processes offer potential options for reforming our current system’s disproportionate concentration of power.

With a frightening number of vacancies looming, and a still yet unknown government, it is especially important to moderate the majoritarianism that a selection process left entirely up to the Prime Minister creates.

If Harper’s two previous Supreme Court appointees have been relatively uncontroversial picks, his track record suggests cause for concern. In 2008-2009 alone there were a documented 233 patronage appointments sprinkled generously among the senate, lower courts and various other government positions.

If we really believe that judicial independence is a cornerstone of our democracy, and that its primary function is to provide a balance to executive and legislative powers, then why has the appointment process gone unchecked for so long? Now more than ever we need to demand real checks and balances to the appointment of the individuals who have the final say on our rights and freedoms.

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