OPINION: Two Judges, a Circus Sideshow and a Healing Lodge

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Sudhir Sandhu is CEO of Manitoba Building Trades and Allied Hydro Council. His opinions are his own and do not necessarily reflect the opinions of the Manitoba Post.

I would wager lunch at the establishment of your choice on the proposition that more Canadians can name a US Supreme Court justice than a member of the Supreme Court of Canada.

Why? Because the Americans do their justice ugly. Really ugly. And by ugly, I mean their process is crassly political and partisan. For a nation that prides itself as the bastion of liberty and equal justice for all, it reduces the process of appointing judges to a side show sham. It is painful to watch and more reflective of an unsophisticated dictatorship than the self-professed greatest nation in history. After the latest fiasco, Brett Kavanagh was sworn in as the latest appointee to the US Supreme Court.

In comparison to the American airing of its cringe-worthy ugliness, Canada quietly appointed a new Supreme Court justice in 2017. Without any controversy, Alberta’s Sheilah Martin became Canada’s latest Supreme Court justice in December 2017. There was no fanfare, no high drama on television, no mocking monologues on late night TV, no protests and no grandstanding by political foes.

The American process is a full contact blood sport. Just as war is an extension of diplomacy, appointing American supreme court justices is an extension of the political process. Politicians come in two stripes; Republican and Democrat. As do judges and sheriffs and school trustees and county officials and state officials and city officials and so on. Politics permeates everything. Americans are Democrats or Republicans more than they are human. On many issues, US Supreme Court justices are expected to, and often do follow “party lines”. Judges also see themselves as extensions of the political process.

In Canada, we don’t mix politics and the courts as much. In fact, a political creature like Kavanagh would never have come close to being nominated for any court in Canada. We like our judges to be boring, free of controversy and untainted by politics. In recent times, Stephen Harper’s nomination of Marc Nadon was the closest thing to a controversy Canada has experienced. And that had to do with eligibility on constitutional grounds than the personal attributes of Justice Nadon.

And when Harper picked a fight with Chief Justice Beverly McLachlin over the eligibility of Nadon, there was a collective gasp in many circles. Canadians were offended by the impropriety of the Prime Minister’s conduct as was the Geneva based International Commission of Jurists which demanded that Harper apologise for hurting Justice McLachlin’s “moral authority, integrity and confidence in the judiciary”. Harper never apologized but arguably, this incident was, at least in part, a factor in his 2016 electoral defeat.

There is a certain dignity in how Canada makes it judicial appointments. There is seldom great controversy. In the US, lower court judges are elected or appointed based on their political bent and how they will interpret the law. At higher levels, political affiliation is a key factor in judicial appointments.

In Canada, we make the laws and allow judges the latitude to apply it as they deem appropriate. Judges do not heed political constraints and there are no party lines to dictate their decisions.

Our system is not perfect. The right side of the political spectrum bemoans activist judges and is more inclined to limit judicial discretion as evidenced by Stephen Harper’s mandatory minimum sentencing. And the left is often accused of giving too much deference to the courts and not making them submit to the will of an elected Parliament. Although dated, a 2002 Environics poll found that two-thirds of Canadians want elected judges.

Canadians should be careful of what they wish for. We already don’t hold our elected officials in high regards. Over the past decade, polls suggest that a majority of Canadians distrust their elected officials. Why then do we want to turn our judiciary into politicians? Does adding judges to the mix of people we already distrust make any logical sense?

Periodically, there are cases that create outrage and backlash against the legal system and by extension against the judiciary. Moving Terry-Lynne McClintic to an Indigenous healing lodge is a current example. It does not help that the federal Conservatives have demanded that the Minister of Justice intervene. Andrew Scheer knows the Minister cannot and should not. Doing so would appropriately prompt calls for her resignation and he is simply playing to populist sentiment for political gain.

After the spectacle that was the Kavanagh appointment, Canadians should be thankful that we maintain a reasonable separation of politics and our courts. On occasion, if the law does not satisfy our sense of justice and fairness, our elected officials should consider changing the law, not the judiciary that applies and interprets it. That is how mature democracies function and that is how they manage questions raised by the McClinic case.

Populism is another name for mob rule. Mobs can administer flawed “justice” quickly and satisfy our lust for revenge. But mobs and sophisticated democracies don’t go together. Neither do circus sideshows and judicial appointments. I am grateful Canada has neither.