Democracy, The Appointment of Judges and the Charter of Rights

Democracy, The Appointment of Judges and the Charter  of Rights


We  are in the middle of a Federal  Election. Respect for the democratic process has been an issue in this campaign. The conservative government has  been the most heavily criticized of  the main parties.

The grounds of criticism include:

– overriding the wishes  of local  riding associations in selecting candidates;
– being held  in “contempt of  parliament”
– renaming Canada’s  parliamentary democracy “Harper Government”
– the “in and out”  financing of  the 2006 election
– the fact that Harper  has   prorogued parliament rather than face  parliament

All of these allegations are deserving of  investigation. That said, there  is  another area – which is  potentially far more  damaging – where  Mr. Harper has exhibited  a clear “contempt” for  democracy.

The Charter of  Rights – Are  Judges Now The Official  Opposition To The  Government?

April 17, 2011 will be  the 29th anniversary of the enactment of the Canadian Charter of Rights  and Freedoms. The Charter was radical  for  Canada because  for  the first time there were limitations  on the power of Parliament. Prior  to April  17, 1982  there was  no law  that could not be enacted  by some level of government. Canadians had  rights only to the extent that  the governments of  Canada allowed  them. The effect of the Charter of Rights was  that individual  Canadians  now had constitutional  rights  and freedoms. In other  words, there  are now  limits on the power of  government.  The Charter is a fascinating document – all Canadians should  read it. It simply defines  human interests  that are  so basic and fundamental  that governments  are  prohibited from unduly burdening them.

Examples  include:

– freedom of speech and religion
– certain rights  when interacting with the police
– Equality rights and freedom  from discrimination

How Does The Charter of  Rights Work?

In any event,  when a law  conflicts  with a Charter  right, the aggrieved  party can seek redress  in the courts where a judge has the authority to “strike  the law”. This  gives  Canadians protection from the excesses of government.

Judges across  the country look  to decisions of the Supreme Court of  Canada  for how to  interpret the meaning of charter rights. Therefore, the identity of Supreme Court of Canada judges matters a great deal in the life of Canadians. Furthermore, Supreme Court judges, once appointed can serve to the age of 75.  If you doubt the importance of Supreme Court judges and/or  if you want to learn about how  they protect you  from the excesses of governments, they you should read “Mighty Judgment” by Philip  Slayton. This newly released book is a must read for all  Canadians  and will teach you with important aspects  of Canada’s democracy that have  been left of  the political  debate.

The appointment of Supreme  Court  of Canada judges  is done  by the Prime  Minister  – historically with neither parliamentary nor public  input.  This seems  strange. Given the amount of litigation that goes  on between Canadians and the government – is it fair that the umpires  be  appointed by the government?

Interestingly, the government of Paul  Martin set the stage for some parliamentary input  into the appointment of supreme court judges. Justice  Rothstein was actually part of a group identified and considered  by the Martin government to replace  Justice Major. Furthermore, this appointment was  to be  the first where  a nominee  to the Supreme Court of Canada was to be  subjected  to some parliamentary scrutiny (“scrutiny lite” to be sure, but  it  was  at least a start). When Mr. Harper  became  Prime  Minister  he appointed  Marshall  Rothstein. Justice  Rothstein did appear before a parliamentary committee. (Mr. Harper had previously campaigned  on a platform that  included reforming  the process under  which Supreme  Court  Justices  were appointed.) Although, it was  not particularly probing, it was at least a  good start. It seems  fairly obvious that, given the importance  of Supreme Court  judges in the democratic  process,  that all nominees  should be scrutinized and that the Prime Minister  (since the judges are  in fact the “unofficial – official opposition to the government”), that the appointment of  judges should not be  at the sole  discretion of the Prime Minister.

The Worst  Abuse of Parliament and the Democratic  Process

In 2008, Mr. Harper appointed  Justice  Thomas Cromwell to  the Supreme  Court of  Canada with neither parliamentary nor  public scrutiny. Justice  Cromwell will serve until  2027. He  will have far more  influence  on the lives  of Canadians, than Mr.  Harper.

The failure to submit Justice  Cromwell  to parliamentary scrutiny is probably Mr. Harper’s  worst abuse  of  the  Parliament of  Canada and the democratic  process. It will have the most far reaching consequences.  It should be  an election issue.

Footnote: Added on April 23/11

Here is an article  by Philip Slayton on this topic.

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