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Some reform Calgary Sun October 14, 2005 The Great Canadian judicial reform (Liberal-style) has begun. No longer will the prime minister and his justice minister hand-pick who they want to sit on the Supreme Court. Since the Charter of Rights took effect in 1982, being named to the Supreme Court is like being elevated to Mount Olympus. You are a god whose word is law forever. You can give convicted criminals the right to vote, make people go to work on Sunday, free thousands of accused criminals all at once, rewrite the dictionary, start Indian wars in the Maritimes, rewrite history, legislate new rights for the kinds of people you like, ridicule and humiliate lawyers whose cases and causes you dislike, and decide who is included in the human race and who isn't. In the future however, thanks to Paul Martin and Irwin Cotler, a new committee will review the available candidates and reduce the list to three. From those three, the PM and justice minister will choose the lucky divinity. Except that ... the PM and justice minister will: * Decide who goes on the review committee. * Decide which candidates are reviewed. * Not allow candidates to be directly questioned. * Make the final pick. Some reform. The PM (who chooses and can fire the justice minister at will) retains total control from beginning to end. It's another nauseating example of "let's pretend Canada is a democracy." Any complaint about judicial selection provokes the defensive reply: "Oh, I guess you'd prefer the ridiculous political free-for-all they have in the U.S.?" As we speak, Washington has gone into another deafening uproar over the same issue. No, in fact, the Americans have the same problem we do. Both our constitutions vest far too much legislative power in the Supreme Court. The 1982 Charter of Rights has simply imported the U.S. problem to Canada. Bravo Pierre Trudeau! The answer lies less in fighting over selection and more in reducing the powers of the court. Otherwise, the only options are either the open civil conflict over selection the Yanks have, or reducing the court to a political extension of the Prime Minister's Office the way we do. A better solution would be a Charter of Rights amendment that denies judges the power to strike down laws. Instead, if judges are convinced a law or policy offends constitutional rights, they should send it for review by the relevant legislature. And if the legislature, upon reflection, still likes the law the way it is, the question should be put to a public referendum. Judicial overturns happen quite often, but most are so technical or so obvious nobody hears or cares. But every so often, along comes a question of large social and political consequence -- Sunday shopping, aboriginal "inherent" rights or the rights of the criminally accused. Who's to say what these words mean? Who decides what legal limitations are "reasonable," "fair," and "necessary?" And what makes us think judges have any better insight and motives than politicians -- or for that matter ordinary citizens? Recently, for example, a Charter complaint of "age discrimination" was brought by 16-year-olds who thought they should be allowed to vote. The court said no, the discrimination against them is reasonable. But more "progressive" judges could just as easily have given the kiddies a ballot, the same way judges all suddenly began handing out marriage licences to homosexuals in 2003, contrary to federal law and Parliamentary resolution. Freedom and democracy depend upon proper checks and balances. Judges should not be more powerful than politicians, nor politicians more powerful than judges. Both can be blinded by ideology, prejudice, cowardice or pride. That leaves only one legitimate authority. The people. In these rare and controversial cases, why not let Canadians -- whose Constitution it is, after all -- be the tie-breaker? Then it matters far less who Paul Martin decides to send to Mount Olympus. |