The increasing activism of the Canadian courts has led many critics, and even some supporters, to call for reforms in the way new judges are selected. The majority of commentators seem to agree that the exclusive power to pick judges should be weaned from the grip of the prime minister. Even leading Liberal leadership contender Paul Martin has indicated he would be willing to submit judicial nominees to some form of scrutiny before a parliamentary committee of MPs.
However, most critics believe that more is needed. Some say selection by a parliamentary committee must be followed up with a vote of the full House of Commons. Other proposals have the sleepy Senate taking on responsibility for vetting judges as part of a package of reforms that would see Senators themselves elected.
In a remarkable speech in Toronto recently, Supreme Court of Canada Chief Justice Beverley McLaughlin acknowledged the demand for reform, but hastily dismissed it by setting up a “straw man” and knocking it down again. She made the disingenuous claim that such reformers want an elected judiciary and raised the spectre of a highly partisan court. However, virtually no critic has suggested an elected judiciary. Ironically, the track record of the Supreme Court on a host of social issues could easily lead an objective observer to conclude that many Supreme Court decisions are ultimately derived from the pages of the Liberal Red Book.
McGill professor of political science, and author of Judicial Power and the Charter, Christopher Manfredi, wrote in a recent National Post column that the statistics on Supreme Court decisions since the Charter was introduced in 1982 demonstrate, “The post-Charter court is more activist and independent than any of its historical predecessors.”
The judges are politicians, he concludes, as, “The Supreme Court makes policy not as an accidental by-product of performing its legal function, but because a majority of justices believes that certain legal rules will be socially beneficial.” So, if judges are not to be elected, he asks, “Is it too much to ask that its members be in some way publicly vetted?”
Federally, only the Canadian Alliance has proposed serious reforms to judicial appointments and the use of judicial power. The party is on record as stating that, “An independent judiciary is a vital bulwark of the freedom of Canadians against the exercise of arbitrary power by the state. However, we also believe it is the role of Parliament, not the courts, to debate and balance the conflicting rights inherent in developing public policy. Final responsibility for public policy must rest with Parliament instead of with unaccountable judges and human rights officials. We therefore affirm the legitimacy of the use of the Section 33 notwithstanding power in the Charter in cases where a court ruling conflicts with the intent of Parliament and the return of democratic responsible government to our nation.”