The Vancouver Scrum

Supreme Questions

Norman Spector argues in a column that Jean Chrétien's stacked the deck with his latest Supreme Court of Canada appointee, Madam Justice Marie Deschamps.

Spector's concern, according to the headlines is that not only has the Court been given another centralist (that is to say favouring the federal government in constitutional affairs) and socially liberal jurist. However, the article suggests that thjere's more to it. With this appointment, one can argue that there are as many as five "Québec" judges on the Court.

By law, three justices from Québec must sit on the court, and with this, Spector has no quarrel with -- Québec has a Civil Code of law, very different from the common law used in the rest of Canada, and it is important for some of the jurists on the high court to understand the intricacies of the Civil Code.

However, he points out that one of the Ontario justices, Mr. Justice Ian Binnie, was born and raised in Québec, although he is an Anglo and has spent most of his career in Ontario, and earned his LL.B for the University of Toronto.

However, once again, the issue of how our judges are selected has come up again, as it does every time that there is an appointment to the Supreme Court of Canada.

Currently, the selection of federally appointed judges is made, officially by the Justice Minister, but in fact, it is done by the Prime Minister. There is no "advise and consent" process as there is in the United States.

I think that the Executive should generally be granted their selections for judicial appointments I am, however, in favour of parliamentary review of judicial appointments.

Over the years, I've gone back and forth on the issue. I certainly don't think that the Prime Minister should appoint any bozo to the judiciary, but at the same time, they have not done so so far, although critics from the far left and far right would beg to differ. Nonetheless, the Canadian judiciary is well-regarded throughout the world for its independence and sound decisions.

What wouldn't be a positive development would be the dirty, partisan confirmation hearings that have become familiar in the United States. It is unnecessary to investigate the sexual dalliances of a prospective jurist, particularly when it is used as another way of saying that the nominee is ideologically unpalatable for some legislators' tastes.

Needless to say, the Clarence Thomas-Anita Hill escapades had little to do with his personal character and everything to do with his arch-conservative stances.

However, it should be up to Parliament, perhaps the Justice committee, to confirm judicial appointments.

The Prime Minister should be able to seek advice in confidence when he or she is contemplating nominees. It is much easier to get honest assessments of a candidate in private. However, when the candidate has been selected, he or she should be presented to Standing Committee of Justice for confirmation. The Minister's choice should be given the benfit of the doubt, and a prospective jurist should only be rejected on the basis of experience and past history, not on ideology. I realize that this is perhaps an unrealistic expectation, but I am, from time to time, an optimist.

The great benefit of a confirmation hearing would be that the people are exposed to the prospective judge, for better or worse, and that the confirmation of a jurist will not be up to only one person. I have often fretted that some fo the more partisan Opposition MPs would ask inappropriate questions, use derogatory language, or go on a witch hunt against a would-be judge.

However, those same MPs who are so quick to criticize the judiciary might well be put in their place by having to face the judge in a comfirmation hearing. As it might turn out, the committee members may well be the ones who are actually under pressure. Who would be doing the questioning? The would-be judge!

This scenario particulary applies to Supreme Court appointments, where the judges would use their preparation skills and encyclopedic knowledge when facing off against an opposition MP looking to score cheap political points. Indeed, such a politicians would likely make fools of themselves when having to confront a much mor experienced judge who is more familiar with the finer points of the law -- and (hopefully) not political demagoguery. This is how I have come to the conclusion that a confirmation hearing for would-be judges would not be such a bad idea.

As an aside, the newly appointed Madam Justice Deschamps' husband has solid Liberal connections. This should not disqualify her from a judicial appointment. For all I know she may be a most qualified jurist. However, it would be nice to know that she got the nod because of her skills, rather than her connections.