Canada's Supreme Court Appointments (or, Why Vic Toews, Andrew Coyne, and John Ivison Deserve To Be Bette-Davis-Bitch-Slapped): August 25, 2004

I woke up early today (5:00 a.m.), and drove down to the donut shop, stopping at the local 7-11 to pick up The Globe and Mail and the National Postnewspapers, Canada's two competing "national" newspapers. Both were full of headlines and articles about the appointment of two new judges to the Supreme Court of Canada. In particular, John Ibbitson's editorial 'Raising the bar is tough to do' (quoted at length below in the "Continue Reading..." section) provides an excellent overview of the new selection process for such judges, and places the matter within a global context. It is an excellent introduction to the topic for any non-Canadians who are reading this blog.

Predictably, certain National Post columnists and certain Conservative Party members of parliament are having conniption fits over the appointments, despite their widespread overall approval by the political, legal, and judicial communities. I'll let the papers themselves do the talking (all quotes are from today's issues, August 25th, 2004):

The nomination of two Ontario judges to fill Supreme Court of Canada vacancies is a breakthrough for women in the justice field and brings a gender balance to the bench that is unprecedented not only in Canada but elsewhere in the world. The addition of Madam Justice Louise Charron and Madam Justice Rosalie Abella, both of the Ontario Court of Appeal, will bring the number of women on the nine-member court to four, including its Chief Justice.

(Shawna Richer, 'Supreme Court gender balance unprecedented',Globe and Mail, front page)

Today, Canada institutes a selection process for Supreme Court judges unique in the world.

Politicians and lawyers everywhere are grappling with the problem of what to do with their supreme courts. How do you create a judiciary that is independent, accountable, competent and representative? The very constitution of the country is at stake.

Parliamentary democracies increasingly recognize that the practice of allowing their heads of government to choose the nation's highest judges after private consultation with legal authorities is elitist and lacks accountability, though it generally produces high-quality choices. No other country wants to emulate the U.S. system, where the legislature has the power to veto presidential appointments, further polarizing an already factional process.

Some countries, such as Australia and New Zealand, still have the old system, amid growing calls for reform. Many others, including much of Europe, South Africa and Israel, have struck judicial review committees, usually made up of judges, politicians and citizens, that submit recommendations from which the executive chooses.

Everywhere, dissatisfaction reigns. In Britain, the mother of the independent judiciary as well as of parliaments, Prime Minister Tony Blair is trying to create both a supreme court to replace the Law Lords and an advisory council to nominate judicial candidates (while abolishing the post of Lord Chancellor, who currently selects judges). He is being frustrated by the House of Lords.

New Zealand, whose supreme court only came into existence this year (before that, the British Privy Council had final say), is already studying changes such as an advisory council.

The problem with advisory councils is that the politicians and citizens on them are usually not competent to decide who among the lower courts is ready for the top spot. They almost invariably defer to the judges on the committee, so that judges, in effect, appoint judges, which is even less accountable than having politicians appointing them.

The U.S. system lends to the polarization between conservatives and liberals, since presidents lean toward naming partisans of one kind or another. Sometimes this has led to withering and inappropriate scrutiny from opposition politicians seeking to discredit the nominee during the Senate confirmation process.

Typical of Canada, Prime Minister Paul Martin's proposed solution tries to blend the best of America and elsewhere. Under the current ad hoc setup, he chose Madam Justice Louise Charron and Madam Justice Rosalie Abella to fill the two available spots on the Supreme Court after extensive but private consultations. That choice will be scrutinized today by a committee of MPs from all parties, plus a representative of the judiciary and of the bar, who will question Justice Minister Irwin Cotler. The committee will issue an advisory report but has no power to veto the selections.

The strength of this system is that it retains the meritocratic principle of letting the government select judges, with the advice of the legal community, while strengthening accountability by subjecting that choice to both political and professional scrutiny.

There are flaws, however. The justice minister is an important player in deciding who becomes a Supreme Court judge, but it is the judicial nominees whom the committee should question. How to do that without letting the process descend into partisan attack is the problem.

One solution might be to strictly limit the sort of questions the committee could ask, while ensuring that a strong and impartial chair maintained order. Legal scholars Patrick Monahan and Peter Hogg have proposed a variation on this system, in which an independent legal counsel guides the review committee in its deliberations.

Permanent reforms to the judicial selection process will be put in place once Parliament returns. The Liberal government is trying to ensure the highest standards of legal acumen in its top judges, along with the greatest degree of public accountability in their selection. This experimental solution is a good start. But there is more work to do before we entrench the Canadian alternative.

(John Ibbitson, 'Raising the bar is tough to do', ,Globe and Mail, page A5)

The two judges are known for supporting same-sex rights. Mr. Koziebrocki, an appellate lawyer who has argued before them, said, "I have won my share of cases and lost my share of cases in front of both. They are very easy to argue before."

But he said increasing the number of women on the Supreme Court should make little difference in the outcomes of rulings.

"Gender-issue cases are really human-rights cases," he said. "If I happened to be looking at something that was a female issue, I'd look at it the same way as if it were a sexual-orientation issue, a physical issue, or an issue of colour or creed.

"Now that there are four women on the [Supreme Court], that doesn't mean women are going to win all the custody battles. The law doesn't work like that."

Don Stuart, law professor at Queen's University, said both judges possess personalities different enough that they would likely negate any impact gender might have.

"Rosie and Louise are like night and day," he said. "Louise is a craftsman-like judge with a particular interest in the law of evidence. Rosie's essence is to rejuvenate the law through the use of principles. In some cases they might cancel each other out."

(Shawna Richer, 'Supreme Court gender balance unprecedented',Globe and Mail, front page)

The federal government yesterday nominated two prominent women, both of whom have written controversial judgments extending spousal rights to same-sex couples, to the Supreme Court of Canada.

The appointments of Justice Louise Charron and Justice Rosalie Abella from the Ontario Court of Appeal -- to be reviewed publicly today in an unprecedented hearing by a committee of MPs and members of the legal community -- will raise the number of women on the nine-member Supreme Court to four for the first time in its history.

Judge Abella has been an outspoken advocate of civil and human rights, while Judge Charron is a former prosecutor considered an expert in criminal law and procedure, evidence and civil law.

Despite past rulings and statements that show both judges to be strong advocates of the Charter of Rights and likely favourable to protection for gay marriage, Irwin Cotler, the Justice Minister, denied that was the deciding factor in selecting the two jurists.

One of the most contentious issues the court faces when it begins its fall sitting in October will be a reference from the federal government asking for a decision on the constitutionality of its proposed legislation pertaining to same-sex marriage.

(Tim Naumetz, 'New judges favour same-sex rights: Justice Minister denies that was deciding factor in their appointments', National Post, front page)

Two Conservative MPs, whose party wants a free vote in Parliament on the issue of same-sex marriage instead of leaving it to the court to decide, refused to comment on the nominations and instead accused the Prime Minister of failing to live up to a promise that MPs would be able to directly screen Supreme Court appointments before they are made.

Under a formula all opposition parties accepted for these two appointments, MPs on the committee, which will also include Julian Porter from the Law Society of Upper Canada and Federal Court of Appeal Chief Justice John Richard, will only be able to question Mr. Cotler about the nominations. The two candidates will not be present for the televised hearing and questions will be limited to areas that relate to the professional capacity of the candidates and personal traits, such as honest, integrity, fairness and common sense.

The MPs and legal experts on the committee will not have the power to veto the appointments, which will be a Cabinet formality after the committee comments on the appointments tomorrow.

Vic Toews, the Conservative justice critic, and Peter MacKay, the party's deputy leader, said they accepted the government proposal for a limited review so they would have the opportunity to draw public attention to Paul Martin's failure to allow direct screening and questioning of the candidates.

At the same time, Mr. MacKay and Mr. Toews said they were not arguing that Parliament's consent should be required for the appointments. (Tim Naumetz, 'New judges favour same-sex rights: Justice Minister denies that was deciding factor in their appointments', National Post, page A6)

Good grief, Vic and Peter, make up your minds, will you? As usual you're talking out of both sides of your mouth at the same time, preaching both to the centre and the far right at the same time. You want a free vote to decide same-sex rights instead of the courts, but you're not arguing that Parliament's assent should be required. So what the hell are you arguing for?? Why ask for a meaningless free vote on a human rights issue (which is what same-sex marriage is about)? Vic Toews, the homophobic justice critic for the Conservatives (whom I am ashamed to admit comes from my home province of Manitoba), is having conniption fits over this issue and its potential impact on same-sex rights legislation:

"Canadians are entitled to look these individuals in the eye and ask them, 'What do you bring to the table?' " said Mr. Toews, a former Manitoba attorney-general and one-time Crown prosecutor. (Tim Naumetz, 'New judges favour same-sex rights: Justice Minister denies that was deciding factor in their appointments', National Post, page A6)

"These are the most powerful people in terms of setting social policy in this country," said Tory MP and justice critic Vic Toews, also a member of the ad hoc committee. "Canadians are entitled to see these people face to face." (Kim Lunman and Brian Laghi, Charron, Abella named to top court: Women will fill four of nine seats on the bench; Ad hoc committee will question Cotler on choices', Globe and Mail, front page)

Translation for those of you who don't speak Vic-Toews-ese: he wants an American-style Supreme court justice selection process, partisan in nature, which would ensure that candidates are elected on the basis of whether or not they match the current political power in office at the time. As John Ibbitson has pointed out earlier, "no other country wants to emulate the U.S. system, where the legislature has the power to veto presidential appointments, further polarizing an already factional process". The American system is a mess and we are wise to avoid it (remember the Judge Clarence Thomas appointment and the pubic-hair-on-the-Pepsi-can fiasco? Ew.)



But the attacks by two National Post columnists are absolutely breath-taking in their venom. Andrew Coyne saves his shots for Rosalie Abella, calling her "so far out of the mainstream", a "deliberate provocation", and "the original quota queen", and calls for her appointment to be withdrawn (Andrew Coyne, 'A purely political choice: original quota queen the darling of the Toronto set', National Post, front page and page A4).

Andrew's "quota queen" slur refers to Abella's former work as head of a federal royal commission on equity in employment, in which her committee's report "introduced Canadians and their governments to the concept of employment equity—a strategy for reducing employment barriers for women, aboriginals, visible minorities and persons with disabilities—that was subsequently copied by the governments of New Zealand, Northern Ireland, and South Africa" (Michael Valpy, 'Abella expected to be superb communicator', Globe and Mail, page A6).

And John Ivison, in his National Post column, whines about the fact that both judges have previously issued rulings in support of same-sex rights (notably, Louise Charron's ground-breaking Ontario Appeal Court ruling that struck down the heterosexual definition of spouse in Ontario's Family Law Act in the now-well-known "M vs. H" case). He plays the homophobia card, saying: "There will be a sizeable body of opinion in the country that will object to the appointment of jurists who have a huistory of controversial rulings on same-sex issues" (John Ivison, 'No coincidence judges support same-sex rights: Grits [i.e. Liberals] push political agenda with court appointments', National Post, page A5). But even Ivison cannot deny the impeccable qualifications of either candidate ("it would be churlish to argue that neither nominee is qualified to sit on the Supreme Court"). John also seems to think that same-sex marriage will be the ONLY thing that the Supremem Court will be ruling on; there are hundreds of other judgements which needs to be made, on all different sorts of matters.

By pulling up the spectre of queer-people-as-boogeyman, John does nothing but dishonour both himself and his profession. What John and Andrew and Vic want, is the ability to control who gets appointed, to be able to secure positions for judges who will vote in their favour.

Thank God they won't get their way this time.