Competence should Trump Process When Picking New Justice
by Margret Kopala

Published in the Ottawa Citizen, February 11, 2006

“There’s time for balancing appointments but Harper should stay low profile,” cautioned the head of the political science department at the University of Lethbridge. “He hasn’t got any room to move. People are too ready to be outraged.”

Peter McCormick and I were discussing the next Supreme Court of Canada appointment but even as we spoke, the Emerson and Fortier appointments had already provoked outrage. Given their big city connections and big business experience in a caucus conspicuously lacking both, Fortier and Emerson would seem to be inspired choices presaging a time of government by titans in the order of latter day C.D. Howes. But if process matters more than competence, these appointments are troubling despite, in the case of Emerson, Edmund Burke’s assertion that a representative betrays constituents if he sacrifices his judgment to their opinion.

If anything, the problem lies with politicians who unnecessarily constrain their access to levers of power by promising changes on issues of process (electing senators, say) before considering substantive issues of form and function (what should the Senate be or do). Perhaps, too, as Peter McCormick cautioned, the timing could have been better. In any case, like the ultimate trophy cabinet minister, Belinda Stronach, these appointments will be vindicated (or avenged) in an election that could happen at any time however much the hounds of democracy’s various estates may howl.

Supreme Court appointees, on the other hand, escape democracy’s discipline and elicit few whimpers from any estate even though, arguably, they can have far greater effect on the direction of the country than most elected or appointed parliamentarians. Who Stephen Harper selects, then, and how, for the Supreme Court vacancy created by Justice John Major’s recent retirement will be of far greater import than any controversy the Emerson/Fortier appointments have generated.

A creature of Parliament rather than the Constitution, the Supreme Court of Canada arrived in 1875 but it wasn’t until 1949, when Canada formally ended appeals to the Judicial Committee (with its overlapping membership in the British House of Lords) that its current size of 9 judges, 3 of whom must be from Quebec, was established. Today, mere convention dictates representation from the remaining regions and eligibility requirements.

Peter McCormick, writing in the Spring 2005 issue of The Journal of Appellate Practice and Process, describes how before the 1970s, partisan and personal connections were significant factors in court appointments. Post 1970, Trudeau expanded the process to include lists and consultations but it existed, still, purely at his pleasure. To an “inherently politicized Court”, the Charter of Rights and Freedoms added “American style interventionis(m … wedded to) a traditionally English style of appointing judges.” This, McCormick concludes, was “simply bad institutional design”.

Like Trudeau, Paul Martin and his legacy-prone justice minister Irwin Cotler attempted an institutional make-over by addressing the “democratic deficit” but instead achieved what must now stand as the first ever institutional affirmative-action double-header. In addition to stacking the Court with two judges favourably disposed to same-sex marriage just in time for the same-sex marriage reference they also came close to creating the first gender balanced Supreme Court in the world.

And the democratic deficit?

“From a caricature of a U.S.-style legislative ratification (Charron/Abella 2004),” writes McCormick, “we have progressed to a caricature of a nomination commission (the current advisory committee)”.

To fill the Justice John Major vacancy, today’s prime minister has three choices: he can redress the same-sex marriage bias created by the Charron and Abella appointments; he can appoint the advisory committee’s nominee or he can create a new selection process.

With a free vote on same-sex marriage due in Parliament, University of Alberta legal theorist Frederick C. DeCoste’s case commentary article Courting Leviathan provides relevant perspective. The Supreme Court’s same-sex marriage responses were historically illiterate, he argues, and its refusal to pronounce on the constitutionality of traditional marriage ‘slough(s) off to Parliament’ the job of proclaiming the only conclusion possible under the Court’s uninformed reasoning, namely that traditional marriage is “constitutionally diseased because it is incurably discriminatory”.

“A decent society”, deCoste admonishes, “does not insult its institutions” nor render its citizens mere “expressions of (a) state” intent on “redeeming their imperfections”.

In this light, Parliament has little choice but to repeal its same-sex marriage legislation. Any resumption of deliberations on this question by the Supreme Court will hopefully see a new judge and new competencies prevail.

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