Who would you appoint to the Supreme Court of Canada Mr. Harper?

Good Day Readers:

Philip Slayton first came to the attention of many for his 2007 book, Lawyers Gone Bad - Money, Sex and Madness In Canada's Legal Profession. A Rhodes Scholar, former Bay Street lawyer and Law Professor at McGill University and the University of Western Ontario, his publication caused quite a stir in the country's tightly-knit, conservative legal community












A fascinating interview with Mr. Slayton about his book can be found in the August 6, 2007 issue of McLean's Magazine.

Unlike the American Senate confirmation process where nominees are first questioned about their views on social issues, past decisions and suitability as judges before a vote is held, "The Harper Government" passsed legislation a couple years ago which now provides for parliamentary debate on Supreme Court of Canada candidates with one critical difference - regardless of the outcome the final decision rests with the Prime Minister rendering the process meaningless.

Sincerely,
Clare L. Pieuk
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Canadians deserve to know who the next PM would put on the bench

National Post
April 18, 2011
By Philip Slayton

Appointing judges to the Supreme Court of Canada is the most importhing thing the next prime minister will do. He can and will choose whatever senior lawyers strike his fancy. He will single-handedly shape Canada’s most significant governance institution for a generation. Long after the prime minister has gone off to enjoy a well-earned rest, the judges he chose will be sitting in Ottawa, deciding critical social, political and economic issues that confront Canada, perpetuating the views of the person who picked them.

The mandatory retirement age of a Supreme Court justice is 75. Four of the current nine justices are over 70. Others are already eligible to retire with a full pension. Judges of the highest court often leave early, burnt-out or otherwise fed up with a very difficult job. If the next prime minister can hang on for a handful of years, he will almost certainly appoint a majority of the Supreme Court’s members. He will determine the court’s essential character for a very long time.
The kind of person a potential prime minister would choose to be a Supreme Court judge matters. How the party leaders think about the Supreme Court and its role in the country’s governance matters. In a U.S. presidential campaign, candidates are quizzed intensely about the qualities they would look for in a judge on the highest court. In 2008, both Barack Obama and John McCain spoke on the question many times, including in their television debates.

What are Canadian leaders saying about this issue during the federal election? Nothing. Our politicians appear to think that it isn’t an important election issue.

They are wrong. The Supreme Court of Canada and its judges run our lives. The 1982 Charter of Rights and Freedoms gave the court enormous power to shape Canada by reinterpreting or striking down federal and provincial legislation. In a 2008 speech, Chief Justice Beverley McLachlin said of the Charter’s effects: “If existing laws did not comply with the rights in the Charter, then those laws had to change. If government action did not comply with the Charter, then government had to change the way it acted.”

Over the last 30 years, the fabric of Canada has been changed by the Supreme Court in astonishing ways. The court has decided what abortion laws Canada should have (none); that private health-care insurance should be available; that, in some circumstances, a minor cannot be forced to have a life-saving medical procedure repugnant to her religious beliefs; and that it remains a crime to help a rational individual commit suicide. It has decided that the state cannot in any way regulate personal religious belief, however eccentric; that the federal government can change the definition of marriage and give gays and lesbians the legal right to marry; that Quebec cannot secede unilaterally; that gays and lesbians are protected by human rights legislation, even when that legislation quite deliberately is silent on the issue; and that group sex at a commercial club does not offend community standards. These decisions are only some examples of the enormous sweep of the Supreme Court’s recent decision-making history.

Judges make law. And their beliefs influence the law they make. Pick a conservative person to be a Supreme Court judge, perhaps even someone who has been a member of the Conservative party or its predecessors, and you are likely to get conservative judgments — favouring law-and-order, for example, rather than the rights of the criminally accused. Pick someone who is middle-of-the-road, or even a bit left of centre, and the odds are that he or she will be favourable to gay rights and worried about police behaviour.

There’s an even bigger issue. Our system of picking Supreme Court of Canada justices is a bad system in the first place: The prime minister shouldn’t have the power to choose Supreme Court justices all by himself.

In the United States, the president nominates a candidate and the Senate confirms the appointment (or not) after a public hearing by the Senate judiciary committee. In the United Kingdom, vacancies in the U.K. Supreme Court are, in effect, filled by a non-political ad hoc selection committee with substantial lay representation. The better of the two is the intensely democratic U.S. model. It is sometimes said that it would not work in Canada because potential candidates will not subject themselves to such an undignified process. But why should someone seeking high office be sheltered from the democratic rough and tumble?

There’s not long to go before we vote in the May 2 election. Mr. Harper, Mr. Ignatieff, tell us what kind of people you would make judges of the Supreme Court of Canada.National Post

Philip Slayton’s new book is Mighty Judgment: How the Supreme Court of Canada Runs Your Life.