Friday, August 27, 2004
Supremely sad show

There was a time when people neither knew nor cared who sat on the Supreme Court. It didn't matter. All the court did was adjudicate legal disputes about crime, property, and the division of powers between Ottawa and the provinces.

Since the Charter of Rights was enacted in 1982, however, the Supreme Court has taken it upon itself to decide what sort of books go in kindergarten libraries, which medical procedures will be covered by medicare, when stores may be open, how young the age of consent for sodomy will be, where and when Indians may fish and hunt, how many hoops police must jump through to arrest someone, and whether incarcerated criminals vote.

They rewrite laws, overturn laws and cancel public policies. We used to elect people to Parliament and Legislatures to make all these decisions after democratic debate, and often to remake them. Now they get handed off as "rights" questions to be irreversibly arbitrated for all time (whether they make sense or not) by judges appointed by the prime minister.

You'd think that politicians would object to having their most important responsibilities taken away from them, but they don't. It transfers all the most troublesome political controversies to the courts, leaving politicians with less work and headache.

Yet, even though the courts now decide political questions, we are endlessly lectured by people like Justice Minister Irwin Cotler and Chief Justice Beverley McLachlin that we must not "politicize" the courts.

By which they mean, just go on appointing progressive, liberal judges, no questions asked. It would be funny if it weren't so disgustingly hypocritical.

The whole business of judging was thoroughly politicized when Parliament shifted the role of the courts from law to politics in 1982.

It reached a crescendo of hypocrisy this week with the appointment of two feminist Ontario judges, Rosalie Abella and Louise Charron, to fill vacancies on the nine-member Supreme Court. Paul Martin had campaigned on the need to "democratize" the appointment process. Apparently it was to be somehow "democratized" without being "politicized."

A committee of MPs was therefore hastily assembled and given one day to "screen" the candidates.

Except they couldn't actually talk to the candidates, only to Justice Minister Cotler, who declared proudly that he hadn't interviewed the candidates either.

Instead, he had "consulted" with unnamed people in the "legal community." MPs were allowed to ask Cotler only about non-judicial and nonpolitical matters, such as whether the candidates are hampered by substance abuse problems or psychological issues.

The two Conservative MPs in this impromptu little posse objected that the whole procedure was a charade, but then didn't dare ask any probing questions themselves about the candidates. Not that Cotler would have answered them if they had.

Such as why the PM would appoint two noted gay rights judicial activists to the court just as it prepares to hear his "reference" question on whether Parliament can institute gay marriage, and whether the provinces can refuse to go along if it does. No politics there!

Instead of this farcical pretense of democracy, the system should be straightforward. Candidates should go before a committee of elected MPs from all parties.

Candidates should explain their general Charter of Rights attitude, and comment on whether they agree or not with earlier Supreme Court decisions and why.

Parliament should decide which candidate they want in a free vote. The prime minister should then submit that choice to the Governor General for appointment.

This would be legal, proper and democratic.

The most important questions by MPs would not be if the candidates support gay rights, abortion, etc.

The central question would be whether they will respect the constitutional supremacy of Parliament and the provincial legislatures to make laws.

Only when judges stop ruling on political questions can we avoid "politicizing" the courts.

Until then, we're stuck with the sort of ludicrous spectacle we saw in Ottawa this week.


Link Byfield is chairman of the Citizens Centre for Freedom and Democracy. He can be reached by e-mail at
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