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Saturday, April 24, 2004
"Prime Minister Paul Martin's suggestion ... is surely right"
If you need further proof of just how incestuous and uncritical is the relationship between the Canadian Liberal and legal elite, you need go no farther than today’s essay in the National Post by Patrick Monahan and Peter Hogg. Monahan and Hogg, Canada’s leading constitutional scholars (both widely respected, and deservedly so), purport to offer a framework for allowing parliamentary “participation” in the appointment of judges to the Supreme Court.
Their suggestions? Well, nothing really. The PM will still retain the sole power to appoint judges. The parliamentary committee wouldn’t be permitted to ask any “embarrassing” questions (and in fact would be restricted in its constating documents as to the nature of questions it asks), it wouldn’t vet a slate of potential candidates but only “review” the candidate already chosen by the PM, its sole function would be to “ensure” that a pre-formulated set of criteria have been taken into account by the PM in making his or her decision, but even if they think that the PM has failed to do so they would be powerless to stop the appointment from going ahead. This is reform? This is simply a façade of democracy, thrown as a sop to give the illusion of progress.
Monahan and Hogg inexplicably still suffer from the mistaken assumption that the problem with the current system is that the PM might appoint “bad” judges, in the sense that they are incompetent or corrupt or, in the immortal words of former Chief Justice Lamer, “lazy”. All they've done is answer a question which hasn’t been asked. The problem is not that the judges will be (or are) incompetent, but that they are fundamentally non-representative and their appointment is anti-democratic, especially in light of the breadth of power granted to judges by virtue of the Charter. The power of Parliament has been subordinated to the judiciary, with no commensurate change in the manner in which the judiciary is appointed. That our leading constitutional thinkers could only come up with a process which simply reinforces existing executive power is scandalously embarrassing.
Posted by Account Deleted on April 24, 2004 | Permalink
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