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Wednesday, March 01, 2006

Judicial review: reviewing the reviewers judges

Prime Minister Harper announced, today, the appointment of Mr. Justice Rothstein to the Supreme Court bench after lots of cluck-clucking from the Grits and Dippers.

But do their concerns stand up?

What if we were to take the various concerns raised and pretend there is no daily question period when the House of Commons sits in which the Government bench is held to account with some very pointed and often raucous questioning? What if . . . we were to take this piece, here, and this press release, here, and . . . (for more of "Judicial review," go to Burkean Canuck, here).

Posted by Russ Kuykendall on March 1, 2006 in Canadian Politics | Permalink


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Interesting. Of course the legal eagles do not like it as they see themselves above the elected government. My, that they might be held accountable - at least at the moment of appointment - is truly scarey. As for the claim that it politicalizes the court, they need reminding that is already the case and what many would like to see terminated. If anything this is only a small step in the right direction, since there should be term limits established for judges, MP's and elected Senators.

Posted by: Alain | 2006-03-02 12:21:30 AM

Very good ... specious argument but creatively put. well done.

Ministers are accountable to the House, and the House, in turn, is in our hands.

Judges are accountable to the Law ( hence the need for independence ) and the Law ,in turn, is in the hands of the House.

If you don't like how a court has interpreted/applied the law don't stack the bench.... change the law.

And if there's no will to do so in the House then change the House. And if there's no will to change the House then the law doesn't need changing.

This "hearings" farce - along with the most undemocratic notion of an elected senate- are just but two examples of creeping republicanism. It must be stopped at all costs !

Posted by: Nbob | 2006-03-02 3:19:29 AM

Don't worry Nbob , the bench has already been "stacked" by the Natural Governing Party.
Hint: Rosalie Abella is not a Republican.

The next appointment isn't until 2013.
Let's moveon , as the left says.

Posted by: nomdenet | 2006-03-02 5:48:42 AM

I find the objections to the review process troubling.

One major objection is that it will 'make us more like the US'. That's a perspective of a Canadian CaveDweller, who defines Canada only as 'we are the opposite of the US'...'we are whatever the US is not'.

There is no analysis of this process; it's just a mechanical reaction, like a metal weathervane in the wind. Couldn't it be the reality that the US method is superior to the Canadian? Doesn't matter to CaveDwellers; the basis for their decision is mechanical. Whatever the US does, we do the opposite.

Comartin's questions are silly:

He wants to ask about the capacity to get along with other judges. Incredible. Can you imagine asking such a question? What's the answer supposed to me??? "I'm a real agreeable guy, I get along with just about everyone..'. How should 'getting along with others' be the basis for a judicial decision???

Then, he wants to ask 'how he analyzes the law'. Wow. What kind of question is that? What kind of response? 'Well, I analyze the law illogically'. Well, I analyze the law according to binary logic; I analyze the law emotionally...
There is only one answer - I decide whether or not the case meets the obligations of the law and constitution. End.

And- he wants to know about the 'specific qualifications'. Shouldn't that already be known within his documented CV?

Very strange and empty questions.

Then - this junk about such a selection being 'partisan'. As every commentator on this blog has said - the current method of selecting a judge IS politically partisan. The decision is made by ONE person, the unelected Prime Minister, with no accountability to anyone.

The judiciary must be accountable to the people. The Legislature represents the people. Therefore, the judiciary must be vetted by the Legislature - which is made up of ALL political parties. Not just the selection of ONE person, whoc is promoting ONE political party.

Posted by: ET | 2006-03-02 6:52:16 AM

"This "hearings" farce - along with the most undemocratic notion of an elected senate- are just but two examples of creeping republicanism. It must be stopped at all costs !"

Nbob, I understand and respect our ties to the monarchy and the Westminster system, but why is putting more power into the hands of the people through their elected representatives something that should be stopped?

In the past, when people were less educated and less knowledgeable, it might have made sense for a few to make decisions for the many. Now, it reeks of paternalism and arrogance.

Posted by: Kathryn | 2006-03-02 7:40:21 AM

Again into the legal fray, unarmed as always?
Let's just tackle these issues one by one.

First, you say to object to hearings as "making us more like the U.S" is to be "a Canadian CaveDweller". No, to object to the hearings is to acknowledge that the American process has produced an intensely partisan court, where it is common for the candidate to have served in the executive branch at some point in their careers, where judges are easily labelled as "Democrat" or "Republican" at the time of their appointment. It is also to acknowledge, as Nbob notes, that while this process may be suitable to a republic, where political power is divided between the executive and the legislature and the former isn't directly answerable to the latter, it makes precious little sense in our system.

Next, you say Comartin's question are "silly". You are silent, however, on what questions an prospective judge should be asked. You can't ask them how they would decide a case; cases aren't decided in a vacuum -- the whole point of the legal process is for the judge to hear argument and weigh evidence. Do you want to grill them on past decisions? A wise judge will say my reasons are my reasons and they are subject to review by higher courts - I've said my piece.
Really, it's not that Comartin's questions are silly (and btw, when you're one of a panel of nine judges, getting along with other judges is actually very important) it's that the process, which is all show and no substance and was instituted as as sop to the know-nothings on the right, is silly.

Third, you state baldly that the selection process is politically partisan because the selection is made by one person. Well, yes, ultimately, the power of appointment rests with the prime minister, but the process leading up to the selection, including the creation of the short-list that included Justice Rothstein, not involved only all the parties in the House, but bar associations and other informed parties. The result was a list of three that included a judge with Tory ties, an academic married to a former NDP politician and a judge from Alberta whose political ties are a mystery to me. Some partisanship. The fact that Beverley McLachlin, who was initially appointed to the bench by a Conservative and was promoted to Chief Justice by a Liberal, can be denounced as a "Liberal hack" by some ignoramus on this board speaks to the non-partisanship of the process at it highest levels.

Finally, and most bizarrely, you suggest that judges must be accountable to "The People" and that this accountability must necessarily involve vetting by politicians. To the extent that judges are accountable, that accountability is built into the legal process. Unlike politicians, judges must give detailed written reasons for their decisions, reasons that must be supported by precedent, the facts and basic legal principles. The decisions of trial courts are reviewable by appellate courts, while appellate courts are bound, absent overriding error, by the facts as found by trial courts.
But it is also a fundamental principle of constitutional democracy that judges must be independent of and insulated from the political process. They don't answer to politicians during their tenure (save in cases of serious misconduct, when they can be removed by address to both houses of Parliament). Why does it make any sense to put them through this gong show at the beginning of it?

Posted by: truewest | 2006-03-02 8:16:11 AM

The hearings were nothing but a love-in. Harper selected a judge from the Liberal short-list so I wasn't surprised to see Irwin Cotler smiling throughout the entire event. The ground rules prevented anyone from asking Rothstein about his past rulings thereby giving the session as much substance as an office birthday party. I was waiting for Toews to pass the cake around.

Posted by: Howard Roark | 2006-03-02 10:37:35 AM

truewest/left - as usual, you are simply disagreeing with me - 'Just Because'. Your disagreements have no substance.

There is no reason why I should be excluded from discussing, debating, analyzing our judiciary, our legislature etc -. What do you mean by 'unarmed'? Who, according to you, should be permitted to discuss this structure? Only lawyers? Why?

1) I disagree that the American process has produced an 'immensely partisan court'. That's what our procedure has produced. All our judges are leftist liberals.

2) Why is the American procedure suited to a 'republic' and not to Canada? You don't make any sense with this statement. After all, our legislature is not 'directly answerable' to the Governor-General/Monarch. Nor is it 'directly answerable to the Government caucus. So - what's your point?

I see no logical or functional reason for the decision to appoint a member of the judiciary to rest within the hands of ONE unelected officer, the PM.
Would you please explain why you think this tactic is 'the best'?

3)Your tactic of denigrating my comments about Comartin's suggested questions, by saying that I didn't supply the questions that SHOULD have been asked - is fallacious argumentation - a non sequitur. There is no need for my criticism of Comartin to be invalidated because I didn't supply a list of the 'valid questions'.

I repeat - Comartin's complaints are silly. Getting along with other judges is a specious question. Are you supposed to answer that you like to socialize, that you plan to invite them all over for backyard barbecues? Such a question is irrelevant.

What matters are the issues - and you, as a judge, are not supposed to make decisions based on your friendship with the other judges but on the law. And if your interpretation of the law means that your decision will be a minority one, then, your need of 'getting along with the other judges' should not inhibit you from making a minority decision.

4) The process, of moving the selection of key figures of authority - out of the privacy of the PM's office - was an important first step.

Harper obviously acknowledges that Canadians are living in a Cave, flung into such by the Trudeau era, and the only way to move them out, is step by step by step. Not by a revolutionary act.
These steps are important; the fact that you don't acknowledge either the Cave nor the tactics of moving Canadians back into the real world of accountability - is your problem.

5) I maintain my point. The judiciary is accountable to the people. To whom else ought it to be accountable?
The legislature is not one political party, but all political parties. The legislature represents all the people, not one political party. I fully agree that the judiciary must be protected from any one political party, but, since the legislature represents all parties, and thus, all of the electorate, then, the appointment of judges ought to be removed from that one office - a political office - and the legislature ought to see the reasons why this person was selected.

I think that the expanded committee process of selecting the judge (in this current case) was proper and good. I think that the short list should have been made public and the final selection should, exactly as was done, be presented to the legislature for questions and review. Again, the legislature represents all the people of Canada, not a political party.

This same process - of an expanded and multiparty committee, public review in the legislature..should also be done for many of the other appointed positions in our gov't. What has happened over our Years in the Cave - is that the government has removed control of governing authority from the people and moved it within its own control. Harper is moving this control back to the people.

You, of course, probably reject this.

Posted by: ET | 2006-03-02 11:20:29 AM

I didn't say you or anyone else should be excluded from discussing legal processes. I merely suggested that, when you speak about the law, you betray a profound ignorance of the respective roles of the judiciary and the legislature, the principle of judicial independence, the difference between a parliamentary democracy and a republic and the functioning of the legal system. In other words, the whole shooting match.

But hey, it's a free country. Yammer away all you like. I'm certainly not going to stop you. Anyone who says all that the American court isn't partisan and that our judges are leftist liberals discredits herself right out of box.

Even American legalists recognize that their court is intensely partisan. On the other hand, you can count on the fingers of one hand the credible legal commentators in this country who would endorse your characterization of our court system (Okay, I'll save you the trouble: Ted Morton and Robert Martin, academics both. Only Martin has legal training.)

BTW, it seems to me that reflexive anti-Americanism has been joined, if not supplanted, by reflexive anti-anti-Americanism. Any criticism of an American process is met by some variation of your inane CaveDweller(tm) comment.

Posted by: truewest | 2006-03-02 12:03:04 PM

Dear truewest
Box 1, Cave 1
Canadian CaveDweller

1) The analysis of people-who-live-in-a-cave is hardly inane; it goes back to Plato.

And, it most certainly describes people who live in a world whose attributes are completely self-written fictions, and which are maintained at great financial, political and credibility costs.

2)You haven't answered any of my questions.
Instead, you do your usual - which is to complain that the other person is 'profoundly ignorant', etc, etc...but - you never, ever, answer any questions nor explain any of your assertions. Your sole tactic of defense, as usual, is to attack the other person as 'ignorant'.

3) The American system has not produced a partisan court - it is neither Republican nor Democrat. Explain why you consider that the US court is partisan.

4) You haven't explained your statement that the American process is suited to a republic. As usual, all you do is state that the other person is ignorant...but you, yourself, define nothing. Is it because you don't know what the terms mean? There is no reason for the American system, which has its executive, judiciary and legislature, act as checks and balances is 'suited to a republic' and not to a constitutional monarchy/parliamentary system.

5)You didn't answer my question of why you think that our system, where one office, that of the unelected PM, appoints the judiciary - is best. Please explain.

6)Why don't you stand up for your assertion that 'getting along with other judges' is a requirement for appointment to the judiciary?

All you do is inform other people that they are ignorant - but- you never answer questions; you never support your erroneous comments. That's not a robust argumentative technique.

Posted by: ET | 2006-03-02 12:39:56 PM

Your ignorance is dazzling. But, hey, it's yours. Briefly,
1) Any American law student can tell you which member of the US Supreme Court belongs to which party. Appointments break down on party lines and have for some time. The same is not true of the SCC, as is apparent both from the recent shortlist, which included candidates with loose associations with a number of parties and from the general confusion that you lot seem to have about who apppointed which judge and what party, if any, those judges belonged to. Oh, but I see that your definition of a "partisan" court is one that is all Republican or Democrat. "Partisan is what I say it is and I say that it is this," says the Queen of Hearts.
2) The reason that the Senate must confirm the president's nominees for various courts, as well as other posts, is because in a republic the executive is not directly answerable to the legislature. The hearings aren't a check on the court's judicial power - once the judges are confirmed, they are answerable to no one but the law -- but on the president's appointment power. In a parliamentary system, the executive sits in in the legislature and is answerable to its members. If Harper tried to appoint his personal counsel to the court, like a certain president we know, he'd been hounded about it in Question Period for months.
3) Why do you need judges who play well with others on the SCC? Seems pretty obvious. Trial judges sit alone -- and many of them like it that way. Courts of Appeal sit in panels of 3 -- 5 in constitutional cases. In most cases, you need only persuade one other person of your position. The SCC sits in a panel of 9; building a majority in difficult cases requires skills that not all trial judges possess.
4) Someone has to appoint judges - giving the power to the federal cabinet has worked reasonably well in our system. While there may be some partronage on the lower courts, the process is closely monitored by the legal profession and partisan ties are less apparent at the appellate level and practically unknown in the SCC. Of course, that hasn't stopped people like you from making sweeping statements about leftist liberals and others from calling all judges to be elected.

Of course, now you'll write "I don't understand what you mean by..." Feigning ignorance is no way to carry on a discussion, especially from someone who thinks herself worthy of giving lectures on "robuts argumentative technique". Unless, of course, you are really as clued out as you seem about how the courts and parliament work in your own country. Which would be sad, but hardly surprising.

Posted by: truewest | 2006-03-02 2:48:01 PM

As usual, a major factor of your method of argumentation is ad hominem. You always denigrate, personally, and resort to name-calling, whoever you disagree with - rather than sticking to the issues.

As for your insistence that Canadian judicial appointments are not within party lines -"If Harper tried to appoint his personal counsel to the court'..blah blah. Not true. Look at the partisan appointments made, without accountability, by the Liberals.

Here's a list of some appointments to the judiciary made in Paul Martin's LIBERAL tenure:

.Michael Brown, Cotler's executive assistant and policy advisor
. Yves de Montigny, Cotler's chief of staff
.Randall Echlin, Legal counsel to the Ontario Liberal Party -
.Rosalie Abella, wife of Cotler's close friend, Irving Abella
.Marsha Erb, Liberal fund raiser in Alberta
.John Gill, co-chair of the 2004 Alberta federal Liberal campaign
.Vital Ouellette, Liberal candidate, Alberta,
.Bryan Mahoney, federal Liberal candidate
Edmond Blanchard, Liberal NB minister of finance

When recently retired Ch. Justice of NS court of appeal, C. Glube, appeared before the Nov 15, 2005 House of Commons Justice Committee, she stated that the judicial appointment system must be changed because the appointments were not based on merit but political considerations.

I completely disagree with you on the need for judges to 'get along well with others'. That's trivial. If a judgment is to be valid, it must be based on an appeal to reason, logic, and data - and these alone should be sufficient to convince the other judges of the validity of your conclusion. Being Nice and Having Barbecues won't do it.

So- I stick to my point. And don't bother with the personal denigrations. Such tactics are beneath contempt.

Posted by: ET | 2006-03-02 3:31:14 PM

Didn't say that patronage is unknown, only that is unheard of that SCC level. And you should get better source of information that REAL Women -- it's like citing a comic book.
Incidentally, for all the ranting you folks do about Rosalie Abella, she's another bi-partisan appointment -- Trudeau put on her on the Family Court, Mulroney put her on the court of appeal, Martin put her on the SCC.
As for your thoughts on what makes a good judge - adn what goes into making law - you're entitled to your opinion. But on the same basis that the Pope's entitled to his opinon on what makes for great sex.
On that point, I'll leave you with the memorable words of Justice Oliver Wendell Holmes, Jr. (an American, you'll be happy to know): "The life of the law has not been logic; it has been experience."
And you, by all indications, are a virgin.

Posted by: truewest | 2006-03-02 4:52:11 PM

truewest- I don't know anything about REAL women. I don't even know what it means.

I'll use your same tactic; you entitled to your opinion..and it is equally worth as little as you consider my opinion.
You see, you denigrate debate. You immediately classify the other person's viewpoint as worthless. That's your major tactic. Then, once you have set up your stage scenario of 'the other debater's opinion is worthless'..you stroll on, smug and secure, to pontificate. That's not debate; that's pomposity, operating within a tactic to set up YOU as superior.
You aren't; you are just using a tactic..and not a good one.

Again- your usual tactic; ad hominem. I won't interact with you again, as I won't deal with people who resort to such contemptible attacks.

Posted by: ET | 2006-03-02 5:03:19 PM

Your opinions on the law and the legal system are worthless unless they're supported by some basic knowledge. Yours aren't. You can denigrate my tactics all you like, but that fact won't change.
REAL Women, incidentally, is the source of the list you proffer above. Credible, they ain't.

Posted by: truewest | 2006-03-02 5:25:21 PM

Blah blah blah...US Style hearings.....Blah blah..politicising the Bench..blah blah..un-democratic.

Having a PM appoint SCC justices is un-democratic and totally open to political abuse...proved by the appointments of the liberals.

Having such a court in place is un-democratic. Proven by the actions of the current SCC in implementing social policy through abuse of their positions. As proven by the satements of certain SCC justices about how they must not allow themselves to be swayed by public opinion but only follow their own sense of ethics...not law.

Having a review of proposed appointees is completely democratic and basically just worrisome to people like the liberals who are worried that in the future their wish to place their own faithful ideologues on the bench may be in jeopardy...and the NDP who will NEVER have the chance to do so! Oh yeah and the lawyers who fear that spending a lifetime sucking up to the powers that be will not be rewarded in such a posting.

It is long past time in this country where the justice system needs to be reminded that its job is to enforce the law not to reinvent it.

Posted by: PGP | 2006-03-02 10:01:49 PM

I understood that Trudeau set up The Charter to enable the Supreme Court Judges to "read in" to it. Without the restrictions of individual and property rights, any special interest group could launch a court challenge and the justices could grant them special priviledges - even the edicts of the UN.

There is a difference between rights and special priviledges.

The courts have been making the law instead of the legislature.

Judges should all be elected and restricted in their rulings by specific delimited law based on the protection of individual rights. They should never be free to rule arbitrarily for the special interests of any group.

I see it as a huge problem with our constitution.
It needs to be changed from the collectivist statist ideology of Trudeau to a document befitting a free country.

PM Harper has taken an important first step in bringing this secretive group of unelected dictators out of the closet.

Posted by: Javahead | 2006-03-02 11:04:28 PM

Excellent post Javahead,

Let it never be forgotten the "charter" these lefties trot out and read verbatim was written by one of the true socialists of our time. There is no question the charter was written and the court set up to advance their socialist agenda.

It is the only way you can get laws like SSM passed when only a handful of people actually support it. It is definitely time for change, like many things in Canada.

Posted by: deepblue | 2006-03-03 12:25:20 AM

The Charter seems to be a vehicle for social engineering rather than anything to do with actual rights.

To paraphrase philosopher/novelest Ayn Rand:
There is no such thing as "group rights". There are only individual rights - and no-one else to possess them.

Posted by: Javahead | 2006-03-03 1:09:34 AM

Our exposure to american TV 's portrayal of its justice system (both real and fictional) already contributes enough to misunderstandings of our system . We take for granted that just because the US has some particular component of its system that we do as well ( or ought to ). Now we're adding to that misunderstanding by producing our own television programing.

Hearings/Vote on SCC members is a valid exercise down south because :

1. It is the ONLY check the legislature has on the bench and they get to use it just once.

2. " States Rights" is a much more fluid concept than the " water tight compartments" that govern Fed/Prov disputes happening up here. That's why the vote is given to the Senate and not the Reps. The states' interests , as represented by the Senate, are balanced with the central gov't interests, as represented by the Pres.

In Canada the legislature has two checks on the bench and they have an opportunity to use them every time the bench makes a ruling. In the US, once the SCC strikes down a law that's pretty much it for the law. In most cases it's a matter of Congress can or can't make the law. In Canada, thanks to s.1, the law is usually redrafted so as not to be unconstitutional or, by s. 33, it can, by a simple majority, vote to "notwithstand" it and it stays on the books as is.

It's a necessary check and balance in the US and it's fair to give the legislature at least one crack at making sure that the person will show more deference to the legislative agenda than his or her own.

If the bench gets it wrong then the only two things " we the people" can do state-side is go through the super structure constitutional amendment route or stack the bench and have them reconsider.

In Canada if the bench gets it wrong then all " we the people" have to do is hold an ordinary vote in the House. The real danger in Canada is that the bench is going to be a rubber stamp on the legislature and offer no check or balance of its own. Hearings add to that danger.

Posted by: Nbob | 2006-03-03 4:22:43 AM

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