Should Chief Justice McLachlin be impeached for this?

Judges with attitude
National Post
Published: Thursday, February 22, 2007

Canada's judges would do well to remember that "judicial independence" works in two directions. Yes, the concept rightly prevents politicians from meddling in judicial decisions. But in return, judges are expected to avoid intruding on political debates. Regrettably, certain members of our judiciary seem to have forgotten this fact.

This week, the Canadian Judicial Council (CJC) -- the governing body for the country's 1,100 federal judges -- publicly denounced recent changes made in the judicial selection process by the government of Stephen Harper. In doing so, the CJC may well have overstepped its bounds. By charging that the Conservatives have placed "in peril" the reputation of our judicial system, merely by altering the composition of the committees that advise the minister of justice on suitable appointees to the bench, the CJC has stumbled into what is clearly political turf. In doing so, the body arguably has compromised the judicial independence it claims to be protecting.

No Canadian law nor constitutional clause gives Canada's courts or judges any say in judicial appointments. There are 12 judicial advisory councils, established two decades ago and spread across the country, which make recommendations to the minister of justice on which lawyers might make suitable judges. But by law, those appointments belong alone to the government of the day. As such, they are entirely beyond the jurisdiction of the CJC, and indeed the council is exceeding its mandate by issuing a public opinion on the makeup of the advisory committees.
The Harper government has not made a host of patronage appointments to the bench. The few judicial appointments it has made in the past year have been reasonably evenly distributed among lawyers with Conservative and Liberal pasts. A case in point: Marshall Rothstein, the Conservatives' lone appointment to the Supreme Court. While known to oppose judicial activism--judges making new laws from the bench -- Judge Rothstein is widely respected for his intellect, legal knowledge and workload.

The Conservatives certainly have not "stacked" the bench with ideologues, as Liberal MP Michael Ignatieff charged last week. Nor have they even made Conservative affiliation or ideology a litmus test for appointment to the councils that recommend the names of new judges.

Since November, 16 of the 33 appointments the Conservatives have made to the councils (they can make 36 in total) have been persons who have or have had Tory ties. But there are 84 voting members nationwide. Sixteen out of 84 hardly represents a usurpation of the process. It is true the Conservatives have stripped the 12 judges who sit on the councils of an automatic vote on each recommendation; the judges now vote only in the case of ties. And the government has added 12 new members from lists of active-duty police officers. Still, the members appointed by provincial attorneys general, provincial bar associations and law societies outnumber the 16 identifiable Tories.
Compare this to the Liberals' record. In 1994, the Liberals tripled the number of members they appointed directly to the councils from 12 to 36. And even a cursory examination of those appointed indicates they were every bit as partisan as the Tories' selections. Yet Canadians never heard a word of complaint from the CJC or the Canadian Bar Association or any of the other critics who now claim the legal sky is falling under the Conservatives. Indeed, none of the same organizations and individuals commented on the threat to our judiciary's impartiality when it was shown at the Gomery inquiry, and in subsequent investigations, that more than two-thirds of the judges appointed by the previous government had been party members or donated money exclusively to the Liberals.

This revelation -- that the Liberals' judicial appointments, not merely their appointments to advisory councils, were heavily partisan -- seems far more likely to undermine the public's confidence in our courts than anything so far done by the Conservatives. Yet the CJC never felt compelled to remind the Liberals (as it chose to remind the Tories this week), that "the judiciary has an important duty toward every person who comes before the courts to impartially hear and resolve disputes," and that all those appointed to the bench must have "the ability to maintain an open mind and put aside preconceived ideas about all issues that come before the court" irrespective "of political or ideological considerations." Perhaps the CJC did not mean to enter the political fray. Yet it is hard to avoid the conclusion that, through its suspiciously selective display of manufactured outrage, it is advancing a political message against a Conservative government that its primarily urban, left-leaning members simply don't like. In other words, it looks like Liberal-appointed judges asserting the partisan colours of the former political masters that engineered their own appointments. Even if this is not entirely true, judges more than anyone, must be acutely aware of the perception created by such unwarranted public statements. If the CJC truly is committed to ensuring every Canadian can come before the courts knowing his case will be heard without partisan taint, then it must not only treat all parties to litigation equally; it must extend the same equal-handed approach to governments.

Judges should hold their tongues
National Post
Published: Saturday, February 24, 2007

Re: Judges with attitude, editorial, Feb. 22.

Your editorial is entirely correct. The appointment process is none of the judiciary's constitutional business, and by meddling in the politics of executive action and parliamentary criticism, the Judicial Council of Canada has defamed and debased the judicial independence that it purports to defend. So why would our judges ever so misconceive the limits of their office and their proper constitutional place? Permit me to make a few observations in that regard.

First, the post-Charter judiciary has ever more confidently taken upon itself the task of expanding the reach of law and the state. The business of growing the state has ievolved two moves: the reconceptualization of the constitution -- the Charter especially -- from a limitation on state power to the repository of Canadian values; and, with that, the conjuring up of constitutional permission to colonize the institutions of public and private life, by making them comport with state values.

Second, since Canada has been a one party state for most of the last 100 years, the Liberal Party of Canada has both appointed the vast majority of our judges and conceived and presented itself as the owner of the Charter and therefore of Canadian values. This has everything to do with the judiciary's imperialism and triumphalism generally and its conduct here in particular. Simply, most of our judges share the Liberal party's view of the constitution and they recoil from anything that would diminish the progress of imprinting that understanding of the constitution on political and social life.

Woven as it is with the stuff of supposed Canadian values, this unhealthy constitutional symmetry between party politics and judicial power alone accounts, in my view, for the ever more chronic inability of federal judges to shut up.