Politics and ideology swayed selections, suggests senior journalist

In response to Prime Minister Paul Martin’s call to close the “democratic deficit,” Liberal Justice Minister Irwin Cotler introduced parliamentary hearings into the appointments of the two newest justices of the Supreme Court.

Canada’s mainstream and supposedly objective media, drawing its story line directly from Liberal party talking points once again, reported in late August that the appointment of Ontario Appeal Court Justices Rosalie Abella and Louise Charron to the Supreme Court was a “balanced decision.” The “balance” exists, according to the Globe and Mail’s Jeffrey Simpson, apparentl, because Abella has a “reputation as a very liberal, activist judge,” while “Justice Charron, by contrast, is seen as a middle-of-the-road choice, hard-working and competent, but without a driving philosophy and more inclined to stick to the letter of the law.” This thesis was repeated in numerous news stories the same day, most prominently in Canadian Press wire stories reprinted by dozens of newspapers and reported by radio and TV.

Actually, both judges have reputations as very liberal, activist judges.

Sun Media columnist Doug Fisher, a former NDP member of Parliament, said, “To put it mildly, the two women whom the PM appointed have past court records which indicate the influence on them of ‘political or ideological considerations.'” The difference between the two is that Abella has sought the media spotlight for her activism over the years.

Both Abella and Charron have made numerous judgements striking down or re-writing existing laws to suit their ideological biases. Among Charron’s decisions are those legalizing marijuana, redefining the term “spouse” in family law (the infamous M vs. H case) and drastically reducing the sentence of a pedophile convicted of possessing child pornography. Abella is infamous for developing the racist, sexist philosophy of “employment equity,” lowering the age of consent for sodomy and the Rosenburg decision, which redefined “spouse” in federal law.

In Rosenburg, Abella wrote, “Elected governments may wait for changing attitudes in order to preserve public confidence and credibility. Both public confidence and institutional credibility argue in favour of courts being free to make independent judgments, notwithstanding those same attitudes.”

Yet, despite the spectacle of a short hearing into the appointments, the judges themselves did not appear for questioning before an ad hoc committee of MPs, and the prime minister alone continues to approve the appointments. This led columnist Fisher to ask: “Why is our legal profession so loath to carry on public discussion or debate about the qualities of both past and present judges, and prospective ones? So much private talk and gossip, but so little public, topical talk by lawyers and ex-judges about appointments made or coming up.”

He continued, “Witness what I encountered when I did a short phone canvass of several lawyers whom I know well enough to ask: why was Abella, an ideological zealot of the romantic, spendthrift left, chosen by the PM and his justice minister, Irwin Cotler? The answer was to liberalize the court, for example on gay and lesbian rights – see same-sex marriages. Martin, I was told, sees himself as modern, even a visionary, so he was excited to set in place a judge for the highest court who’s been a jewel in the roster of the Ontario Court of Appeal since 1992.”

Conservative MPs on the ad hoc committee, most notably opposition justice critic Vic Toews, refused to criticize the appointments directly, but took aim at the Liberals for their failure to live up to an election promise to allow for a parliamentary review. Toews, a former attorney-general of Manitoba, said, “The Conservative party has long advocated openness and transparency for appointments to the Supreme Court of Canada. However, these ad hoc proceedings have failed Canadians. Transparency and openness have not been achieved by the peripheral window-dressing alterations made by the government.”

At the hearing, Toews laid into Justice Minister Cotler, saying: “This promise of transparency appears to have been abandoned for what in fact is a rubber-stamp process, an afterthought rather that a genuine consultation.” He said if he had been given the opportunity to question the justices, he would have asked them both, “Why do you believe you are qualified for this eminent position?”

Toews will not state whether he thinks the judges are qualified, but speculates that they have been appointed to fulfill the Liberal pledge to redefine marriage. “The prime minister, I think, chose those individuals to advance his political agenda in that respect. Most analysts have come to that conclusion,” he said.

Indeed, University of Calgary political scientist and court watcher Ted Morton told The Interim, “The government was probably going to get the decision they wanted on marriage anyway. These appointments guarantee it. It gives the lie to the claim that they don’t want to politicize the court. It is now the most politicized court since the Charter was adopted in 1982.”

Morton continued: “It’s becoming more and more apparent that elites in Canada view constitutional change as their personal property and want as little democratic input as possible. The one time they did open it up – the 1992 Charlottetown referendum – the public soundly rejected it. This confirmed their distaste and contempt for democracy, instead of having 11 men (the prime minister and 10 premiers) run it through the Supreme Court.”

Yet, the possibility of dramatic change in the area of constitutional decision-making could come quite quickly if the Conservative party were to gain government in an election expected within the next several months. The party is running on a platform of establishing “a judicial review committee of Parliament to prepare an appropriate response to those court decisions which Parliament believes should be addressed through legislation.”

“That would certainly be a good idea,” said Morton. “The Charter doesn’t give a monopoly on Charter decision-making to any branch of government. The notwithstanding clause makes it clear the provinces and federal government can decide. And, judges are certainly not infallible.”