Paul Martin’s Liberal government will give committees of MPs the chance to scrutinize judges nominated to the Supreme Court of Canada. That promise was made in January by Liberal MP Roger Gallaway, the man given responsibility for democratic reform by Martin.
“What is obvious is the courts, but particularly the Supreme Court, have assumed a position of power which challenges the doctrine of the supremacy of Parliament,” said Gallaway, adding that the courts are a “creation of Parliament and subject to it.”
Chief Justice Beverley McLachlin and other critics of parliamentary scrutiny should “remember their proper roles, one which is to avoid comment on political or parliamentary affairs,” said Gallaway. His proposal stems from a six-point plan put forth by Martin last year to address Canada’s “democratic deficit.” The former Reform and Canadian Alliance parties have long supported parliamentary scrutiny of judges, but the Chretien government refused to go along with it.
The move is already getting applause from long-time Canadian critics of judicial activism. Jim Hughes, national president of Campaign Life Coalition, told The Interim he suspects the Liberals have adopted judicial scrutiny in order to derail the Conservative Party, which has been “beating the drum loud and long about this issue.” The prime minister appears to be following through on promises he made to democratize government, said Hughes, who is prepared to give Martin the benefit of the doubt for now.
The proposal, added Hughes, is “very small,” but clearly “a change for the better.” Asked if allowing MPs to grill court nominees might lead to the ugly and highly partisan confirmation battles sometimes seen in the United States, he replied that a real national debate on issues such as abortion and gay marriage would be “a good thing,” as “it might bring in a breath of fresh air.”
London Free Press columnist Rory Leishman, who has written extensively about the courts, also told The Interim he favours judicial scrutiny, as “the separation of judicial from legislative and executive powers is essential to freedom under law,” and the Supreme Court has destroyed any such separation of powers in Canada under the pretence of upholding the Charter of Rights and Freedoms.
“We Canadians are now living under subjugation to lawless and arbitrary judges who presume to impose their own opinions on the law in relation to the most vital and controversial questions of public policy,” he said.
Leishman admitted that “having the House of Commons justice committee scrutinize judicial nominees would do little to curb this usurpation of legislative power by the courts,” but he would still like to see MPs ask each nominee if he or she subscribes to the traditional role of the judiciary, whereby judges follow judicial precedents and uphold statute laws and the Constitution as originally enacted and intended. “If the nominee were to answer ‘yes’ to this question, there would be no point to inquiring further about his personal views on any issue of public policy that might come before the court,” said Leishman. “If the nominee were to answer ‘no’ to this initial question, he would identify himself as another aspiring judicial autocrat,” he continued.
“Members of the committee should subject him to a severe grilling on his opinions on abortion, so-called gay marriage and all other political issues. Those MPs who uphold the basic principles of parliamentary democracy should also firmly reject his nomination.”
Both Hughes and Leishman agreed that Parliament will ultimately have to stand up to the courts if democracy is going to mean anything in Canada. “To revive democracy and freedom under law in Canada, Parliament must sooner or later resolve to exercise its undoubted power under the Constitution to impeach judges who refuse as a general rule to stick to judging and to leave legislating to the legislators,” said Leishman.
