Opposition politicians, as well as many judges and lawyers, have been critical of Prime Minister Stephen Harper and Justice Minister Peter McKay for making public remarks about Chief Justice Beverly McLachlin’s supposed “inappropriate influence” in the decision to disallow the appointment of Justice Marc Nadon to the Supreme Court of Canada. They accuse the PM of politicizing the court and damaging its neutrality, and they assert that the Supreme Court is non-political and politicians should stay out of its business.
This ignores how the SCC has long been liberal and activist and therefore political. Appointments to the court may be made based on merit, but they are also political. Political parties, various interest groups and the provinces all try to influence the selection of judges whose known views and judicial record is most likely to mirror their own politics and interests.
Even Justice Rosalie Abella, who was perhaps one of the most obviously political appointments to the Supreme Court in recent memory, acknowledged the political overtones that affect the judgements of the court when she once stated it is impossible for judges to completely divorce their judgements from their personal beliefs.
And what is the Supreme Court’s record? It has frequently “read in” law that was never intended by Parliament. It has changed and reinterpreted laws in accordance with the chief justice’s stated view of the law as “living” and “evolving,” thereby essentially dictating law to Parliament.
Chief justices have made public presentations and pronouncements on the court’s “philosophy” and struck down laws passed by Parliament which were not in line with the court’s philosophical views. The court has acted as a surrogate for the birthing of the previous Liberal government’s social engineering agenda and generally acted as if its role entitles the judges who sit thereon to conduct themselves and render judgements as though they are “supreme” to Parliament. That is political!
The court could just as easily have ruled that the law concerning the appointment of Supreme Court judges had also “evolved” to make Justice Nadon’s appointment valid. Certainly experts which the government consulted beforehand thought he was eligible, including two former Supreme Court justices.
I will reserve judgement on whether the PM’s comments regarding Chief Justice McLachlin were off mark, but if his intent was to send a message to the honourable justices about their proper function and role, he was bang on.
Perhaps a name change from Supreme Court to “The High Court of Canada” would be a good start towards creating a proper view of the Supreme Court and the court’s view of itself. Parliament is supreme, or should be, not the court, and it seems to me odd that the chorus of critics of the PM should so clearly see the problem of politicians interfering in the court, but not see the problem of the court inserting itself into, and interfering with, politics and the law as determined by our democratically elected representatives.
No doubt a good argument can be made for judges to be socially and politically aware and, when appropriate to do so, to take those considerations into account when making judgements. This, though, is a fine line which must be tread very carefully if our courts are not to interfere with the legitimate and proper functioning of our democracy.