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Tuesday, May 18, 2004

Supreme Court of Canada

Today's 6-3 Supreme Court decision was written by Mr. Justice Michel Bastarache. Here's a column I wrote in 2002, which I've cross-posted at Norman's Spectator

Chretien's stacked the deck When he named the latest Supreme Court judge last week, the PM gave it a federalist, socially liberal shape for a decade to come, says NORMAN SPECTOR
17 August 2002
The Globe and Mail

While Stephen Harper and Stephane Dion were sparring over bilingualism last week, the wise old fox was up to his usual tricks.
Without as much as a by-your-leave, Jean Chretien appointed a new justice of the Supreme Court. Since Supreme Court judges call the shots on all sensitive issues these days, you'd think we'd get to know something about where they stand before they get to sit on the bench.

Yet Marie Deschamps's appointment arrived like thunder in a bright blue sky. Her name had been on no one's list to replace Claire L'Heureux-Dube. We still don't know much about her -- except that Pierre Gobeil, her "conjoint or life partner," has excellent Liberal connections. Federally and provincially.

Some commentators noted that the relatively young Madam Justice Deschamps, as she will be known for the next 25 years, was Mr. Chretien's fifth appointee to the Supreme Court -- which means he's now named the majority of the judges. Others explained that the new justice was filling the legally guaranteed third Quebec seat.
What no one pointed out is that four of those nine judges who were already on the court were born, raised and completed university in Quebec ; Judge Deschamps brings that total to five. Now four of the nine are francophones (Louise Arbour, Charles Gonthier, Louis LeBel and Judge Deschamps) and one is English-speaking (Ian Binnie).

With Judge Deschamps's appointment, the majority of the judges on the Supreme Court of Canada now come from one of our provinces. And Quebec 's population today accounts for less than a quarter of the Canadian total.

The Quebec quota on the Supreme Court has always been controversial. Constitutionalizing the statutory provision was the first item discussed by the first ministers at Meech Lake in April of 1987; it took longer to resolve than any other element of the accord.

The rationale for this very appropriate requirement is that Quebec has a distinct legal system, the Civil Code, which dates from Napoleonic times. Yet, today, five of the judges were trained in civil law -- if you count Mr. Justice Michel Bastarache, who did his law studies at the University of Montreal .

His appointment was also controversial. Usually, a second consecutive New Brunswicker would not have filled the one Atlantic seat on the Supreme Court. Moreover, in addition to his strong Liberal connections, the fifth francophone justice had been an ally of Mr. Chrétien in past language and constitutional wars.

The Charter of Rights and Freedoms is unique in treating language not as a political issue, but as a question of human rights. The courts will continue to play the predominant role in defining the extent of bilingualism across the country, as they did most recently in overturning the Ontario government's decision to close the Monfort hospital.

In truth, then, the Dion-Harper exchange was a sideshow. Sure, it was entertaining -- in both official languages. (The record for silliest two-solitudes statement had been held until now by Diane Lemieux, who, after being appointed Quebec 's culture minister, declared that Ontario has no culture. Lest anyone think we know much about what's going on in Quebec, consider the pundits who've assured you that Mr. Chretien's Clarity Act has killed separatism for all time.)

Where I live, supporters of the Canadian Alliance have been crowing about Mr. Dion's embarrassing climbdown. They say Mr. Harper deserves the credit. You remember him: He's the leader of Her Majesty's Official Opposition who, after returning from a holiday in Mexico , popped up on our television screens to upbraid the hapless Mr. Dion.

Yet he had nothing to say about Judge Deschamps's appointment. The day it was announced, the best the Alliance could do was to have justice critic Vic Toews half-heartedly declare that a parliamentary committee should have reviewed the appointment.

That's because Mr. Harper is actually a big fan of judges making the law, at least with respect to language rights. Reading his speeches and statements, you could even say he's a Trudeauite.

It's been said by Mr. Chrétien's critics that he has no vision, and that he's been a status quo prime minister since 1993. While conservatives have been squabbling, however, he's coasted to three consecutive majority governments.

For better and for worse, judges he has legally appointed will be making fundamental policy decisions for the rest of us long after he's gone.

Republicans in the United States are too smart to succumb to internal division; they understand the importance of appointing even a single member of the U.S. Supreme Court. What Stephen Harper has not told us is what he thinks about Judge Deschamps (who, with two children, is presumably no stickler about marriage) deciding whether restricting the institution to heterosexuals violates the Charter.

That's what I'd like to hear him address, before the Supreme Court makes its next controversial decision, and Alberta Premier Ralph Klein rails about "judge-made law."

Posted by Norman Spector on May 18, 2004 | Permalink


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