Following a speech to the Ottawa Chamber of Commerce on Feb. 3, Chief Justice Beverley McLachlin of the Supreme Court of Canada was asked for her opinion on the desirability of having Parliament play a more active role in the appointment of judges. A restrained judge would have refused to answer such a politically charged question.

What, though, did McLachlin do? She answered the question. “The short answer,” she said, “is no.”

McLachlin added: “It’s not my business to get in there and say what the precise appointment procedure should be.” That’s right. As a judge, McLachlin should have nothing to say about a contested issue of public policy like the role of Parliament in the appointment of federal judges.

As it is, McLachlin opined: “I think in order to preserve the public confidence in the impartiality of the courts, we should avoid politicizing it.” Then, having observed that the prime minister has the final say on the appointment of judges to the Supreme Court of Canada, she added: “I respect that, and that is the Constitution.”

Actually, there is not now, and never has been, any provision in the Constitution of Canada Act on the appointment of judges to the Supreme Court of Canada. The court was created by an act of Parliament in 1875 pursuant to Section 101 of the Constitution, which states: “The Parliament of Canada may, notwithstanding anything in this act, from time to time provide for the constitution, maintenance and organization of a General Court of Appeal for Canada.”

The Supreme Court of Canada was not only created by Parliament in conformity with the Constitution, but has never been entrenched in the Constitution. It follows that Parliament retains full authority over the appointment of judges to the court and can insist upon ratifying nominees proposed by the prime minister.

However, the plain wording and the original understanding of the Constitution mean nothing to judicial activists like McLachlin. Over the past 25 years, they have repeatedly amended the laws and the Constitution of Canada by reading whatever they prefer into the statutory and constitutional text. In this way, they have judicially enacted legalized abortion on demand, gay “marriage” and, most recently, consensual group sex in nightclubs open to the public.

The separation of legislative and judicial powers is one of the fundamental principles of a constitutional democracy. In conformity with this doctrine, judges are supposed to restrain themselves to upholding the laws and the Constitution as intended by elected legislators.

Instead, judicial activists like McLachlin have transformed the Supreme Court of Canada into a super legislature, dictating laws and policies to elected representatives of the people in Parliament and the provincial legislatures. And by so doing, these robed dictators have gravely undermined the public confidence in the impartiality of the court that McLachlin purports to champion.

Regardless, McLachlin now presumes to instruct Prime Minister Stephen Harper on the proper method for appointing Supreme Court judges. Rather than give any heed to her improper and extra-judicial policy advice, he should fulfill his duty as prime minister to uphold the promise in the Policy Declaration of the Conservative Party of Canada that: “A Conservative government will assure that nominees to the Supreme Court of Canada will be ratified by a free vote in Parliament, after receiving the approval of the justice committee of the House of Commons.”

In December, John Major resigned from the Supreme Court of Canada. In choosing a successor, the Harper government and Parliament should pay no heed to the private opinions of a potential candidate on abortion, two-tiered medicine or any other contentious public issue. Those views should be irrelevant. And they will be irrelevant if both government and Parliament assure that the nominee is, above all, a well-qualified legal practitioner who can be relied upon as a judge not to assert his or her arbitrary will, but to uphold the laws and the Constitution as originally understood.

There is only one way for Parliament to restore full public confidence in the independence and impartiality of the court: it must eventually replace McLachlin and all other judicial activists on the Supreme Court of Canada with restrained judges who respect the traditional separation of legislative and judicial powers.