Juridics: Canada: Shocking 'reform' of Canadian Supreme Court appointments

The newswire service Canadian Press has produced a fine summative article (unsigned) that I found in The London Free Press yesterday, an article loaded with relevant information that provides an overview of changes that have occurred in the Canadian executive's procedures in its previously obvious arbitrariness in making Supreme Court Justices. Now, that arbitrariness, I conclude, is somewhat veiled, but remains arbitrary in the most monarchist sense - except that the Prime Minister is the monarch while in office. (By the way, there is no indication that the Governor General could step in on her own clout, to veto a Prime Ministerial appointment to the Supreme Court, so that monarchist element is further veiled by the institution of the office of Governor General, while the true monarchical function here is the present minority-government party leader of the Liberals, default Prime Minister Paul I, successor to Jean I.)

Now, appearances can be deceptive. As when Martin's Justice Minister, Irwin Cotler (by now well-known for past shenanigans in the destruction of the uniqueness of marriage and creatng a g(eneric)marriage in the place of the authentic precursor to this later conceptual monstrosity) - well, this Cotler "asked Canadians to submit their ideas on who should fill the next vacancy on the Supreme Court." A factoid worth scrutiny and questioning. I'm wondering whether "Canadians" includes only inidivuduals, individuals grouped by commonly signing a petition circulated by some hub-person or group (such as an NGO or an association of corporations or an institutional community of juridic values distinct from the mainstream), or a legislature of one of the provinces, etc. ? In contrast to such possiblities, in contrast, the Cotler offer sounds very much like a TV contest, and perhaps serves a similar purpose, such as advertizing the "democracy" of participation by suggestion, again an appearance only to render less stark the monarch's choice of a new Justice. The CP/LFP article is itself disingenuous in characterizing Cotler's ploy as effectuating a case where "the public has been given a formal role in the selection process for Canada's highest court" [my italics - Owlb].

Formal role, really? Only in the sense of setting up a smokescreen of mere formality; something I would more accurately term a "nicety."

Not everyone thought Cotler's move will open up Canada's judge-selection process. Some critics called it "window dressing" because the final decision remains firmly with Prime Minister Paul Martin.

Indeed, it does. And in Canada, one can't give the authority of "advice and consent" (confirmation of the monarch's nominee) to the Senate because the Senate does not consist of elected Senators but of folks appointed by the monarch and his dynasty. Nor can one give the authority of "advice and consent" meaningfully to the House of Commons; because while the Commons is elected, the monarch is not in a distinct executive-role necessary to a meaningful nominaton, because he is himself an elected Member of Parliament, the leader of his party, the ultimate disciplinarian of the MPs of his party who would vote on his nominee (nominator controlling some MPs votes for the nominee), and at the same time the same person is the head of governement - so there is no distinction of the overall executive role from the legislative, no distinction of the nominator from that of the confirmers/nonconfirmers.

Martin first promised parliamentary review of Supreme Court nominees when he was running for the Liberal leadership in 2002. He said it was time to reform the 127-year-old system in which the prime minister has the only say.

But after appointing Louise Charron and Rosalie Abella to the nine-member bench a year ago using little more than the traditional method, Martin has been under increasing pressure for systemic reform.

Charron and Abella were appointed to stack the Supreme Court with jurists who were known to be desirous of dismantling the traditional definition of marriage. They were rammed-thru appointments, without public hearings or any kind of real reform as promised in the campaign which put his minority government in power. To have granted public hearings on Charron and Abella would have brawt up the ideological nature of their appointments, and allowed at least MPs to question them closely - among other things, in regard to why lesbian couples and 2men unions couldn't be accomodated without the simultaneous dismantling of the name, priority, historical place in society, and unique status of marriage as a union of one woman and one man.

Of course, once Martin hoisted these brainy ladies to court membership, when the time came, the court with them now in membership was canny enuff to send the issue (of dismantling marriage and replacing it with gmarriage) back to Parliament to decide one way or another, on its own - otherwise the process of monarchical stacking of the court would have been just too obvious for the appointed Supremes themselves to live with the palpable absurdity. I'm waiting for the Supreme Court to follow thru on its new precedent, and recurring to the court's earlier send-back to Parliament the courts' own decisions striking down Parliament's legislation governing abortion, a matter which Parliament (that is, the Prime Minister) has never dealt with. The new precendent of send-back apparently under the influence of the brainy ladies is one that leads to a courtly preference for Parliamentary decision-making, while yet the court always holds the trump card of possibly declaring any decision violative of some concocted extra-constitutional right, thus null and void.

Under the new process, Cotler will consider people nominated by the public along with those from more traditional advocates such as law societies. Candidates must either be barristers with 10 years at the bar or sitting judges from provincial and territorial superior courts.

The justice minister then compiles his own list of up to eight candidates. A nine-member committee -- comprised of an MP from each federal party, a former judge, a law society representative, a provincial representative and two government-appointed lay people -- will whittle that list to three, from which Martin will make his choice.

Here the Minister's description of the process is disingenuous, in the extreme. It doesn't seem to matter to him, as reported, that the Prime Minister will already have a list of eight, perhaps developed thru conversations with Cotler, and that members of Cabinet will also have conversations with Cotler, perhaps even in Cabinet meetings and in the minutes, why not? Then, of course, to the formalities. Cotler investigates the PM's 8 as well as any others he picks for the short list, then he presents them formally - publically? or in secret? Well, the justice minister compiles his "own" list of up to eight candidates.

As to the qualifications: Note that while there are two laity on the bargaining committee, there is no room for a person qualified simply as a philosopher of law. So, if a community of concern from within the public seeks to play out its vaunted role of "democratic" participation by suggestion, to suggest a publically-published philosopher of law - who perhaps never had an academic appointment as such - he would not qualify no matter how informed regarding the Canadian legal system and Charter of Rights and Freedoms. Thus, the exercize in public particpation, as long a shot as it would be in any case, would be in advance an exercize in vain.

Of course, the important list is that of the justice minister, his top eight (even if each one of them were first whispered in his ear by the PM of the day). Then would come the secret meetings of the committee of nine who would bargain and fuss, form cliques and negotiate chips, to "whittle." We now would have a sanctioned secret whittle process to determine the threesome from which the Prime Minister would choose a new justice from the eight he had listed in his pre-determinations to the very Minister that the Prime Minister himself had appointed to the Justice Ministry in the first place. In short, we move from the former straightforward monarchian approach in a Copernican mode, to the 'updated' approach which is in reality a regression to epicycyles, wheels within wheels, deals within deals in a new Ptolemaic mode for choosing the members of the Supreme Court of Canada.

Needless to say, this new absurdist arrangement is all extra-Constitutional. In Canada, there is no real Constitutional remedy for the arcane legalistics of appointments, nominations, and confirmations to the Supreme Court, at least on the Federal level - because in large part, the Québec / Canada relationship historically precludes any actual amending of Canada's Constitution since repatriation of the British-North America Act and the addendum of the Charter of Rights and Freedoms. As to the judiciary, what fundamental changes may come are, therefore, limited to those the courts and eventually the Supreme Court can concoct by arbitrarily implanting post facto meanings into the actual words of the Charter of Rights and Freedoms, etc. - Owlb