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What's so scary about MPs quizzing judges? - Friday, April 23, 2004 at 09:15

PUBLICATION:  National Post
DATE:  2004.04.21
EDITION:  National
SECTION:  Comment
PAGE:  A18
COLUMN:  Andrew Coyne
BYLINE:  Andrew Coyne
SOURCE:  National Post


What's so scary about MPs quizzing judges?


The good news is that Paul Martin has narrowed his list of priorities down to five. As unveiled in last week's Toronto speech, they are health care, education, aboriginals, cities and Canada's role in the world. That's about two more than he should have, but it's a couple of dozen fewer than he had previously announced.

The bad news is that democratic reform does not appear to be one of them. Indeed, the Prime Minister appears to have lost all interest in the subject. The "free votes" initiative failed at the first gate, when Liberal members were forbidden to stray from the party line on funding for the gun registry. Senate reform is nowhere on the horizon. And while several provinces are moving to fixed election dates, reforming the electoral system, or both, the Prime Minister continues to flirt with calling a snap election, for no reason other than partisan advantage.

Another casualty: Reform of the process by which judges are appointed to the Supreme Court. Or at least, reform worthy of the name -- a process that would not only give the public a serious look at the character, qualifications and opinions of those called to sit on the country's highest court, but require that these appointments be ratified by their elected representatives. Yes, I'm talking about parliamentary review, or the "American system," as it is inevitably and disparagingly called. The Prime Minister has talked about allowing Parliament to review other major appointments, such as to the Bank of Canada (though even here the last word would be his). But he has been far less forthcoming with regard to appointments to the court.

To be fair, Mr. Martin is hardly alone in quailing at the prospect of democratic oversight of what has until now been the prime minister's exclusive prerogative. The whole Canadian legal establishment appears to be having heart palpitations over this one. At a conference in Toronto on Monday, all manner of alternatives were tossed about, accompanied by any number of arguments as to why it simply would not do to let MPs question judges directly. Perhaps the justice minister could be called before a committee to explain why a particular choice had been made. Or a panel of jurists, academics, and other representatives of respectable opinion could make recommendations to the prime minister. Or -- my favourite -- MPs could interview the nominee, but in secret. Or ...

What is it about the idea of questioning judges in public that causes such hysterics? That, after all, is what the judges themselves do: ask questions in public hearings. I suppose if trials were commonly held in secret, the same worthies would be telling us how it simply would not do to hold them in public, and for the same reasons: It would turn trials into a circus, good people would be deterred from participating, etc. For that matter, you could make the same arguments about elections.

What runs through all of these arguments, other than an instinctive preference for the status quo, is a distorted vision, not only of the alternatives, but of how the present system actually functions. The notion that parliamentary review would "politicize" the process is a particularly risible example, to anyone familiar with the carnival of lobbying and counter-lobbying, logrolling and backstabbing that has attended past appointments. It's just that rather than being played out in public -- "the circus" -- it's all done backstage, where they use real knives.

A recurring theme at the Toronto conference was that parliamentary review would threaten "judicial independence." If true, you would think this was an argument for removing the power of appointment from the prime minister altogether. But it's nonsense. Are we to suppose that the United States does not have an independent judiciary? Tell it to Richard Nixon. Or that the quality of appointees to their bench is somehow inferior to ours? Have you read a Canadian Supreme Court decision?

The partisan show trials that cause such concern to the delicate are unusual, even in the States: that's why they are notorious. To the extent they occur, they reflect the genuine divisions that exist within American society, divisions that in this country are suppressed or ignored until they become cancerous. And while it is easy to fan oneself in alarm at the prospect of such political rough-and-tumble intruding into the hallow precincts of the law, the critics ignore the upside: a Supreme Court whose legitimacy is unquestioned, even in moments of crisis like the Florida recount. Actually, it wasn't a crisis, which is the point.

That's not the case with our Supreme Court. In part, that's because the questions it is called upon to decide today, owing to the introduction of the Charter, are much broader than before. But in part it is because of a secretive, autocratic selection process that is out of keeping with the democratic temper of the times. You can see the judges feeling their way, tacking this way and that in an effort to avoid getting too far offside with public opinion. By "politicizing" the appointment process, on the other hand, we would confer upon the court a legitimacy it does not now possess, and with it the independence it needs. We would make the court less political, not more.

Don't be afraid, Prime Minister. Jump in. The democratic water's fine.