Canada’s Supreme Court Vacancy
By Brent Colbert (08/08/05)
Right now Americans are reviewing every detail of Judge John Roberts’ life to discover what kind of judge he might be once confirmed to the Supreme Court. In Canada one of our Supreme Court Justices has announced his retirement effective December, 2005 and Canadians for the most part could care less about who is selected to replace him.
Justice John Major who was appointed to the court by former Conservative Prime Minister Brian Mulroney in 1992 has announced he will step down two months early in advance of his mandatory retirement at age 75. This leaves one remaining judge appointed by a Conservative government.
In the recently published book “What Are Canadians Thinking..About Almost Everything” our support for the court was overwhelmingly high but a large majority of the respondents felt that there was political influence in the decision made by the Court.
The constitution provides for the supremacy of Parliament to make laws but our current government has on occasion used the court as either cover or scapegoat for unpopular policy decisions.
They misrepresented a Courts decision on Québec’s ability to unilaterally secede from Canada and introduced a bill in Parliament, The Clarity Act that sets the groundwork for an eventual referendum vote and possible unilateral declaration of independence by the Province of Québec.
They misrepresented a Supreme Court advisory that the federal government has the Constitutional authority to define the definition of marriage by saying that the Court had ruled that the traditional definition was unconstitutional.
The Court was asked to comment on a draft bill and their decision was that the government had the right to introduce the bill. The Government could have just as easily introduced a bill codifying the traditional definition of marriage, yet when anyone suggests that the Government’s bill could be overturned they incorrectly claim that it would be contrary to the Courts decision.
The Court recently ruled that Québec patients had the right under the Constitution to purchase medical services outside of the publicly funded system where an unreasonable wait times are present. By extending this precedent across Canada it could have been a bold step in much needed reform of our healthcare system.
Just last week the same Court granted a stay for 12 months on that decision to permit the Provincial Government in Québec an opportunity to appeal.
Justice Major voted with the majority in the 4-3 decision, I would expect the litmus test for Prime Minister Martin’s Supreme Court Nominee will be their support for socialized healthcare and opposition to any private delivery of services. By the time the question is before the court again I expect this ruling to be overturned.
It is expected that the Prime Minister will announce his nominee to the court prior to an expected election within the next few months. Unlike in the United States the Prime Minister’s selection is rubber stamped by the Governor General with no requirement to have the nominee approved by Parliament. The last two nominees were presented to a Commons Committee by the Justice Minister but there was no direct questioning of the nominees, no discussion of their judicial temperament or qualifications for the job. The committee was granted one session to discuss the process for selecting the two justices and was shut down after one day when the Prime Minister made the order in Council appointment and was received by the Governor General.
Most Canadians could not identify one member of the Supreme Court. As long as we as Canadians continue to permit these unaccountable jurists set public policy or allow our elected representatives to misrepresent their decisions we should demand changes to the appointment process. The Prime Minister should retain the right to appoint whomever he or she desires but we should institute a modified “advise and consent” process so that future nominees can be questioned and their judicial temperament debated prior to their appointment to the Court. Make the quality and character of the Prime Minister’s nominees a question in people’s informed voting decision. If the Prime Minister appoints a nominee that has been rejected by the people’s representatives in Parliament let the PM defend that decision during an election. It’s the least we can do to demand answers from those that have the powers to take away our rights.
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