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Chief Justice Beverly Mclachlin's rebuff of a (preposterous) call for her resignation made by a coalition of Christian and right-to-life organizations in response to her involvement in granting the Order of Canada to Dr. Henry Morgentaler, (see TheCourt.ca's Christopher Bird's comment) overshadowed another interesting remark the embattled Chief Justice made at a Canadian Bar Association meeting in Quebec City last week. Unconventionally, McLachlin CJ. issued a plea to Parliament to appoint the next Supreme Court of Canada ("SCC") judge post haste. Though her remarks lack the sensationalism of either the call for her resignation or her response, they certainly merit some consideration.
It is "very important" McLachlin CJ. told reporters, that the SCC begin its busy fall season "in full strength" (as reported in the Toronto Star). Absent a nominee to replace Justice Bastarache (who retired last June), the court will have have to sit seven judges to avoid the possibility of a stalemate, McLachlin CJ. explained. "If the court [was] divided and we were sitting seven," she went on to say, "there might be a little bit of uncertainty" as to whether the outcome of the decision would have changed "had two other people been on ... the court."
The Chief Justice's comments are perplexing for two main reasons. First, though candid, they are politically risky. At bottom, McLachlin CJ.'s remarks amount to an admission that, without a ninth member on Canada's top court, a diminished precedential value will attach to any controversial decisions that the (seven-judge) court renders. Therefore, though presumably intended to put pressure on the Harper government to move fast in appointing the next Supreme Court Justice and thereby enhance the court`s credibility, it is entirely possible that the Chief Justice`s comments will dampen its authority until the next Judge is appointed.
This is confounded by the fact that, particularly in in the area of criminal justice, the Federal Government and the SCC have routinely butted heads in recent years. In fact, in the past few months in particular, several of the top court's decisions have been poorly received by the feds, (Canada (Justice) v Khadr, [2008] 2 SCR 125 (May 23, 2008), R v DB, [2008] 2 SCR 3 (May 16, 2008) as well as the companion cases, R v AM, [2008] 1 SCR 569 (April 25, 2008) and R v Kang-Brown, [2008] 1 SCR 456 (April 25, 2008) are just a few examples).
In the event that a seven-judge court reaches a split decision that the federal government dislikes, (especially if it is a 4-3 decision), McLachlin CJ.'s admission that the jurisprudence of a seven-judge court lacks the same level of credibility as a nine-judge court could embolden the federal government to ignore the decision, or, to bide its time, then challenge it after installing a judge with a judicial temperament that is more compatible with the government's objectives.
McLachlin CJ.'s comments are also significant because, at bottom, the Chief Justice is attempting to exert an influence on Supreme Court nomination process. To be fair, her motivations for doing so seem squarely administrative in nature. Nevertheless, it is not clear that McLachlin CJ. should be inserting herself into the selection process. Just as the unwritten constitutional principle of judicial independence dictate that Parliament should stay out of judicial decisionmaking, the unwritten principle of democracy counsels against allowing unelected members of the judiciary to interfere with political processes.
Although the extent to which partisan politics should be allowed to creep into the SCC is a matter of considerable debate, it is far less controversial that the appointment process itself, (as per s. 4(2) of the Supreme Court Act, RSC 1985, c S-26), is a responsibility that resides with the federal government.
5 Comments
I see the argument for potential problems arising from McLachlin going too public with admonishing the Harper government for being slow, but I think some of these problems are overstated. I am unaware of any precedent of a government in Canada ignoring a Supreme Court decision because less than 9 justices were sitting. Indeed, during the Lamer court, full panel hearings were far less frequent than they are today.
Some may argue that the current Harper government's disdain for a largely Liberal-appointed SCC (McLachlin herself notwithstanding) would lead them to take any opportunity they can to ignore Supreme Court rulings, but I find this argument unconvincing. While the Justice Department did make a rather unusual step in praising Rothstein's dissent in R. v. D.B., they nonetheless accepted the court's decision. Future "tough on crime" legislation will no doubt go through the process of "Charter vetting" in the Justice Department, rather than ignoring the decision altogether. I see McLachlin's argument concerning a seven-judge panel having less authority applying more to appellate courts than legislatures.
You wrote: "In the event that a seven-judge court reaches a split decision that the federal government dislikes, (especially if it is a 4-3 decision), McLachlin CJ.’s admission that the jurisprudence of a seven-judge court lacks the same level of credibility as a nine-judge court could embolden the federal government to ignore the decision, or, to bide its time, then challenge it after installing a judge with a judicial temperament that is more compatible with the government’s objectives."
If this were true, it would require a profound sense of belief on the part of the Tories that they will indeed be government for some time to come. One is left to wonder: If "installing a judge with a judicial temperament that is more compatible with the government’s objectives" is important, why on earth would the Tories wait?
Conservative politicians, pundits, and scholars who are highly critical of the policy-making role of judges are acutely aware of the huge impact judges can have on policy. I would think the government would have been licking its chops the second Bastarache stepped down, and would have sped up the appointment as much as possible. Indeed, with McLachlin's insistence that he be replaced speedily (she said the same thing back when Bastarache announced he was stepping down), the Conservatives could said they were merely acting on McLachlin's request.
In short, I'm baffled as to why the appointment process has taken as long as it has. All parties recognize that appointments to the Supreme Court have the potential to affect policy for years to come, and the Conservatives are no exception. McLachlin's public declaration that she wanted a replacement for administrative reasons would have given the government all the political capital they needed to be far quicker than they have been. Indeed, with an election forthcoming (and the victors hardly predetermined), from a political point of view, the Conservatives have spurned an opportunity to make a very important appointment. Not to mention, the slow response has potentially prevented the Supreme Court from hearing as many cases as it would like, as they are a member short. It's a very curious situation.
I think the author of this article is seeking to create controversy around a simple statement where is there is none. Can we just simply accept the statement for all that it is worth, and what it simply conveys: the SC has a really busy schedule, and adding another judge will make the weight of the cases better to handle; and secondly, the absence of two judges (one retired, the other not sitting to have an unequal number) can undoubtedly shape this country's course of law. Who is to say that the absence/attendance of two "conservative" or "liberal" judges will not have an affect on the court's final decision?
As for for "exerting influence" in the political field, what did the author read that we did not? The Chief Justice simply suggested, and perhaps expressed the sentiment of the whole court's view, that the government move with its appointment. She did this openly, in public and for the media. There was no backroom discussions or arm-twisting of government officials. Not only was the statement open, she did not point to any procedural matters and did not make any recommendations, which would, I believe, amount to exerting undue influence.
I completely agree with the observation (made in Dave Snow's comment above), that it is rather surprising that the Harper government has not jumped at the chance to appoint a Supreme Court Justice. To be fair though, it hasn't actually been that long since Bastarache J. retired (June), and the federal government has taken significant steps toward appointing the next SCC judge.
A word of clarification per Bassam Lazar's comment. I am not suspicious of the Chief Justice's motives for publicly identifying the need to appoint an SCC Judge ASAP; I agree that McLachlin CJ`s primary interest is in securing a full court -- one that is better equipped to tackle the SCC's busy fall season.
Even though I don't impute political motives on McLachlin CJ's remarks however, I still think it was a mistake for her to insert herself into the political dialogue in a fairly public forum.
It would seem that the PM has responded to McLachlin CJ's request to have a full court by fall. Welcome to the SCC, Justice Cromwell.
What seems to have been overlooked is that the appointment of SCC judges, one would think, involves a lot of balancing acts, especially in light of a minority Conservative government and the proroguing of Parliament.
Various interplays among many aspects of academia, gov't, input from the Bar, are all at play here, where SCC judges appointments are concerned, behind the scenes, one would suppose.
I think politics nothwithstanding, the Chief Justice is right to insist on the appointment, due to case loads. I for one have two cases sitting at the Reconsideration stages for the past 6 months and going, and so far, one can only attribute this to the lack of the full complement of Judges.
Nonetheless, for an interesting interplay of the Role of SCC judges, some acting in a multiplicity of roles, one can visit the SCC and check out the pleadings in files 32605 and 32746.
That should be a teaser of some difficult constitutional matters, which I am yet to see any precedent anywhere, in light of our present constitutional arrangement, providing the SCC accepts leave.