Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue - Macleans.ca

Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue

Philip Slayton in conversation with Luiza Ch. Savage

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Partisan judges, how the Supreme Court runs our lives—and why it should be an election issue

Photographs by Andrew Tolson

Philip Slayton is a former law professor and Bay Street lawyer. In 2007, he roiled the legal world with his scorching book, Lawyers Gone Bad: Money, Sex and Madness in Canada’s Legal Profession. Now he is taking on the pinnacle of the legal profession with his new volume, A Mighty Judgment: How the Supreme Court of Canada Runs Your Life.

Q: You write, “The Supreme Court of Canada runs our life.” How so?

A: Since the 1982 Charter, fundamental social, economic, and political decisions have been taken by the Supreme Court of Canada: more than by Parliament or by the cabinet or by the prime minister. The court runs the life of every Canadian by deciding fundamental issues that we care a lot about. For example, in the Morgentaler case of 1988, the court struck down Canada’s abortion law and since that time there has been no abortion law at all. We are the only country in the Western world in which that is true. In the Vriend case, the court overrode the express wishes of the government of Alberta, and decided that provincial human rights legislation protected a gay man. The court has also said, for example, that same-sex marriage is okay, and that Quebec cannot secede unilaterally.

Q: Do you think the judges have overstepped their role?

A: The Charter handed that power to these judges and they are not averse to using it. Have they overstepped? That’s a difficult question. I changed my mind as I wrote this book. I began by thinking you have nine people not elected by anybody, they can’t be kicked out, they work behind closed doors, this is not a good thing, this is not democratic. Then I realized the only opposition we have to a very powerful executive branch, an increasingly autocratic executive branch, is the Supreme Court. The judges on that court are the only people who can decide, ‘You can’t do that.’ They are the real opposition to government in this country. And as such, they are very valuable and important.

Q: So it’s a good thing they run our lives?

A: It’s a good thing they are able and ready to challenge governments—federal and provincial—and bring them to more constitutional ground. It’s a good thing they protect minorities from the tyranny of the majority.

Q: So what’s the problem?

A: The problem is that the country has gone Charter mad. Many issues that used to be solved in the political domain are now characterized as legal issues. There has been a transfer of political debate away from elected representatives to the courts and judges.

Q: Aren’t politicians complicit in this when they bring constitutional “references” and ask the court to weigh in on a difficult issue?

A: Politicians can now say, “Oh, that’s a tough one. That’s a Charter problem.” That’s not a power grab by judges. That’s politicians passing the buck. The judges don’t like these references. Currently there is a reference to the court on a national securities regulator. That is an inappropriate subject for the court. It’s going to the court because politicians can’t solve it, or don’t want to try. Or take the issue of Canada’s prostitution laws. How we think about prostitution is, to me, a political issue. But the more difficult, complex, and politically controversial something is, the more likely it is to end up in the courtroom.

Q: Are we heading to a constitutional confrontation between the court and the executive?

A: I think it’s inevitable. There have been a few times when the court was close to over-stepping the mark. It came close to instructing the federal government to seek the repatriation of Omar Khadr, a Canadian citizen, when it decided Khadr’s Charter rights had been breached at Guantánamo Bay, where he is a prisoner. You could sense them edging up to a much more overtly political role, getting involved in foreign relations.

Q: You write: “A Supreme Court judge is chosen by the prime minister, in private, using whatever criteria he happens to find appealing at the time.” What process would you propose?

A: There are four judges on the court who within the next four years or so will reach the mandatory retirement age of 75. There are others who may retire early. The next PM will shape this court, through appointments, for a generation and beyond. The people he appoints will draw the social and economic face of the country for decades to come. In light of that, the process for appointing judges should change. I favour the U.S. model.

Q: But many Canadians fear public confirmation hearings and putting a judge to a vote by the Senate would “politicize” the judiciary.

A: Once you accept that the Canadian Supreme Court and U.S. Supreme Court are these enormously important makers of policy—only someone who is naive or who is being nominated to a seat on the court denies that—the argument about politicizing the court seems beside the point. The court is a political institution. Why not treat it like one? There is this uncritical acceptance by the Canadian people of a notion that judges are above politics. They are not. By politics here, I don’t mean partisan politics. I mean the promotion of a social, economic, and political vision of how the country should be structured and run. Of course judges act on some view of the world. How could it be otherwise?

Q: The U.S. court is criticized as being divided along partisan lines. In your research, did you find differences between judges appointed by Conservative and Liberal prime ministers?

A: I didn’t see any obvious differences. People point out Jean Chrétien’s appointments to the court all had some connection to a provincial or federal Liberal party. If you look at the two Harper appointees, Marshall Rothstein and Tom Cromwell, it was widely acknowledged that Rothstein is a small-c conservative. Cromwell is harder to pigeonhole. But there is not the kind of screamingly obvious partisan point of view one sees in the U.S.

Q: What do you want to hear the election candidates debating with regard to the court?

A: The makeup of the court should be an election issue. People are asking, for example, do we need new fighter jets? We should ask, what about the Supreme Court? You want to be prime minister, Mr. Ignatieff? And you, Mr. Harper? What kind of people are you going to put on the court? I want to hear the candidates debating what the Supreme Court should do, how it should run.

Q: Harper’s first appointee to the court, Rothstein, was given a hearing before a parliamentary committee. But it was kind of a dud.

A: By all accounts it was a joke. There were very softball questions. The committee was instructed by an eminent law professor, Peter Hogg, that it couldn’t ask questions about controversial issues. Right from the get-go the committee was hobbled. It also didn’t have any power to reject the nomination. It was all window dressing.

Q: The U.S. has a cottage industry of interest groups that exist to influence the selection of judges. They vet the candidates, read all their past decisions, dig into their student papers and their speeches, and then they hand it over to the senators or leak it to the media.

A: Why not? It seems to me we are entitled to know more about these people who are going to be in very powerful positions for a very long time. Why shouldn’t we have a system in which, if we find out something we don’t like, we can stop a nomination? Canadians still have this tremendous deference to judges, even to candidates for judicial office. We don’t want to challenge them. We don’t want to say anything that might be considered rude or impertinent. Deference to authority and the famous Canadian politeness are not appropriate in this context.

Q: You can watch Supreme Court of Canada arguments on television or online. In the U.S., cameras are banned from the courtroom. But you write the judges should be more transparent, they should even go on Facebook.

A: The point I’m trying to make is that very traditional ways of communication are not adequate in the new age. It’s not enough to archive video of arguments before the court. For one thing, they are deathly dull.

Q: You are opposed to judges sitting until age 75, the current mandatory retirement age. Why?

A: A judge can sit there for 20 or 25 years, which makes it difficult to refresh the personnel on the court and to have fresh new ideas and to reflect a rapidly changing demography. I’d like a 15-year non-renewable term.

Q: You write that judges on the top court should be required to be bilingual. Why?

A: This is an unpopular view, but I think this is a bilingual country and it’s more than just symbolism to have judges of the highest court proficient in both official languages. A number of francophone lawyers who have argued before the Supreme Court can point to examples of how their arguments were not understood fully or inadequately translated. They believe this put them at a disadvantage.

Q: What questions would you ask a judicial nominee?

A: I don’t think you could ask a question like: if abortion came before the Supreme Court again, how would you decide the case? But I think it’s fine to ask questions designed to elicit his world view, his view of how the country should be organized, his legal record, judgments given in his judicial career to date. In the U.S., senators ask anything they want. Broad questioning can sometimes be awkward and embarrassing. But that’s not the end of the world. It is often said that if judges were publicly questioned, many people would not allow their names to be put forward. I say, bunk. If they are not prepared to answer questions, maybe they shouldn’t be Supreme Court judges. Is it demeaning to their dignity? Rubbish.