I went to bed last night intending to post a mock-ha-ha piece asking if anyone had seen the Government of Canada. Didn’t we just elect a new Parliament? Who is in charge in Ottawa anyway? Since no one party has a majority of the seats, it is actually an open question, until the Commons gets back to business sometime in October.
In the meantime, our Justice Minister has announced that the Liberals are changing the way Supreme Court judges are appointed. Except they aren’t.
Constitutionally, the appointment of SC judges is the sole responsibility of the Prime Minister (well, of the Crown, actually, on the advice of the PM). The Conservatives want the House of Commons to be able to question potential appointees, like Congress does in the US. The Liberals want to avoid a “US-style” inquisition/media circus which would “politicize” the Court. Potential judges want no part of any public examination of their political leanings or private lives.
Under the compromise arrived at, a panel of MPs will get to question the Justice Minister about the judges the Prime Minister has decided to appoint, and then file a report. Question for the class: Does this fulfill Paul Martin’s pledge to make the nomination process “more democratic”?
I’m finding it very hard to figure out where I stand on this whole issue. On the one hand: with the adoption of the Charter, like it or not the Court is now a major political actor in Canada, with more real power and influence than our elected MPs. Shouldn’t MPs have some oversight over the membership of the Supreme Court?
On the other hand: Canada is not a republic, nor is it even a disguised republic. Parliament is made up of three elements — Crown, Senate, and Commons, each with its own independent source of legitimacy and power. The genius of the parliamentary system lies in the way these elements have come together in a creative tension.
What this means, though, is that Parliament is a system of government “of the people, for the people”, but not “by the people.” That is, “the people”, as represented by the Commons, do not govern; they consent to be governed by the Crown-in-Parliament.
All of which is to say that turning the appointment of SC judge over to MPs, as the Conservatives want, is not simply a matter of making the system “more democratic”. It is a step toward a complete remaking of Parliament into a more republican style of governing. That may be what we want, but we need to keep in mind the law of unintended consequences.
Canada has been well-served by Parliamentary government. Does the Prime Minister have too much power? Maybe. But if the behaviour of our MPs during the hearings into the sponsorship scandal is any indication, it is not obvious that the Commons has the talent or collective sense of public duty that a proper examination of Supreme Court nominees would require.