CKNW Editorial
for July 7, 1999

It’s a shame I didn’t get more time yesterday with Professor Jacob Ziegal on the Supreme Court of Canada – a subject I regard as very serious indeed.

As it stands now, it is the Prime Minister who says who will go on the court and though the pretext is that the Minister of Justice makes the decision, that’s eyewash.

The Supreme Court of Canada is extremely powerful, yet it hasn’t even got a bare thread of democracy connecting it to the people. For one thing, the Supreme Court of Canada decides on issues between the federal government and provinces yet one side to that dispute, the federal government, gets to decide who the judges will be. This basic denial of the rules of natural justice just gets a ho-hum from academics and the politicians and bureaucrats in Ottawa just love it. But it’s clearly unjust.

While the Supreme Court also is the top arbiter of civil and criminal matters in the country its most important task is interpreting laws in light of the Charter of Rights and Freedoms. In this latter area the power of the Court is limitless with this exception – at great political peril a government can invoke the “notwithstanding” clause of the Charter and thus override the court’s decision.

In a democracy one might think that appointments to such a powerful body – whose members hold tenure until they are 75 – would be done in a democratic manner. But this is but one piece of evidence proving we are not a democracy.

Professor Jacob Ziegal, Professor Emeritus of Law at the University of Toronto, proposes one of two ways to select judges of the Supreme Court.

His first method would have a selection committee, presumably appointed by the Prime Minister, select a short list of candidates from which the Prime Minister would select one. But, one need not be unduly cynical in assuming that a Prime Minister’s Committee would consult with the Prime Minister before making recommendations and that the Prime Minister’s selection would be on the list.

Professor Ziegal’s second proposal would have a joint committee of the Senate and the House of Commons “vet” any selections and have power to recommend against any that were unsatisfactory. This has the obvious flaw that the Prime Minister’s party would, except where there was an all too rare minority government, have the majority. Professor Ziegal likens this method to the American practice citing the oft times political hostility of the Senate to the President of the day and it is they who have the final say.

There is, however, an important distinction to be made. In the United States there is a division of powers hence a very much watered down version of party discipline than we have in Canada.

What both suggestions ignore are the rights of the provinces to a say. Because the provinces will have to appear before the judge to be appointed, ought they not to be able to find out where the judge basically stands on the division of powers question in this country? Surely they must, in fairness have this right if the federal government has that right.

I like the American system which gives to the upper house, which represents all the states, the power to say ay or nay to a proposed member of the Supreme Court of the United States.

It gets a bit messy on occasion but there seems to be no lack of candidates to sit on their Supreme Court – and after all, that process is faced by all senior members of the executive branch and to lower courts, such as the Court of Appeal, as well. Besides that, why shouldn’t a person who seeks the highest office in the land be questioned about his integrity, biases and political background?

The problem in Canada, of course, is that the Senate is a wretched mess. Though supposed to represent regions, it is again appointed by the Prime Minister.

I suppose this is what is so exhausting about the thought of reform in this country – the needs are so massive and inter-connected that the government is always able to discourage reform with considerable ease.

But the day will come when either we do make the necessary reforms or pay a very high price for failing to do so.