A check without the balance

Feb

2006

Written by Jesse W Kline

Prime Minister Steven Harper recently announced plans to change the way that Supreme Court justices are selected. I think this is a good thing, as we need a new process for selecting justices. However, once again Harper has not gone far enough, and seems to have failed to fully grasp why these changes are needed.

First of all, he is not giving the opposition a veto on his selections. I don't think this is a bad thing as it would only increase the power of the socialists and the separatists. Of course by not even allowing parliament to vote on the nominations, Harper has done little more than providing entertainment to the unemployed people who will actually watch these hearings. In fact, it appears as though the only way that opposition parties will be able to block a nomination is by getting a significant amount of public opinion on their side. This process will allow them to do that by making the appointment process more transparent, but it will do little else.

Once again, we should be asking why we need to reform this process. Yes it is because we want our government to be more open and transparent, and yes it is because we want some checks on Prime Ministerial power. However, we have something that separates us from the United States, and which demands a different process for selecting judges than our neighbors to the south have. We have strong Provinces. In the United States the main purpose of the supreme court is to provide judicial review (ie. upholding the bill of rights). In Canada, our Supreme Court has historically been much more involved in managing disputes between the two levels of government. Back when the Judicial Committee of the Privy Council (JCPC) was the final court of appeal, a majority of their rulings sided with the Provinces, and shaped our federation into what it is today. After 1949 when the JCPC was replaced as the final court of appeal by the Supreme Court of Canada, many of the judgments began to side with the federal government (since the Supreme Court is a beast of the federal government). Herein lies the problem. The court is supposed to interpret the Constitution and resolve jurisdictional issues between the federal and Provincial governments, but the selection process for the court is handled entirely by the federal government. Even if we did give opposition parties a veto, or subjected appointments to a free vote in the House of Commons, it would not solve this issue because all of these players are part of the federal government.

The reform that is needed is to give the Provinces a say in how Supreme Court justices are selected. This would create a court which is more fair and balanced, something that is needed in order to produce fair and unbiased rulings on jurisdictional issues. I am not going to propose how this reform should look, but it may go hand in hand with Senate reform. If we had an elected Senate which was based on regional representation by the Provinces, and the Senate was able to hold a vote on the Supreme Court nominations, I think the entire process would be much more legitimate.