The Appointment of a Justice of the Supreme Court of Canada

In my earlier posting concerning the bizarre state of Canada's democracy, I discussed the way Canadians participate, or to be more accurate, do not really participate, in the selection of our Prime Minister. As I noted, whoever is the leader of the political party which wins the most seats in the House of Commons, is the Prime Minister - the most powerful person in Canada. This person is exclusively chosen and removed by his/her party, by whatever process that party has. Unless you happen to be a paid-up, registered member of that party, you have absolutely no say in who that person will be.

Provinces have the same system with respect to the election of their Premiers. Thus, in places like Alberta, where the same political party has been in power for literally decades, and other parties have had virtually no chance of gaining power for a long time now, the only way to have a say in who the Premier of Alberta will be is to join the governing party (the Conservative party). That process costs about $5.00 Cdn, and can be done in a matter of minutes.

The Supreme Court of Canada has enormous judicial power in Canada. It is the final Court of Appeal for all of the Provinces and Territories. Its importance to the social, political and economic life of Canadians is enormous, made even more so by the Canadian Charter of Rights and Freedoms which allows the courts to strike down provincial and federal laws if they infringe upon an individual's charter rights.

So how are members of this body chosen? In a nut shell, they are chosen by the Prime Minister. No confirmation by Canada's Parliament is necessary or even sought. Although in recent years a process involving consultation with an "advisory committee" has been instituted, which involves some questioning of the candidate chosen by the Prime Minister, when all is said and done it is still the Prime Minister who chooses who the newest Supreme Court of Canada justice will be. (See http://www.mapleleafweb.com/features/supreme-court-canada-appointment-process for discussion of this consultative process, how a list of candidates is developed, how a short list is drawn up etc.)

The absolute power of the Prime Minister to make the appointment without the necessity of consultation or questioning was illustrated in the most recent appointment of Justice Thomas Cromwell. Prime Minister Harper, who recall suspended Parliament in order to avoid being overtaken by the "coalition", and during this suspension period, appointed Justice Cromwell, thereby by-passing the consultation and questioning process, which he himself brought in, because he felt it was urgent to make the appointment now. While most commentators, including myself I should add, think that Justice Cromwell will make an excellent new Justice, this of course is not the point of this blog. (see http://www.google.com/hostednews/canadianpress/article/ALeqM5jLeU3de1UZ2-oVg_H1BGBe0Pdsyw for just a peek of the discussion on this matter). The newest appointment reaffirms, if reaffirmation were even necessary, that in Canada it is the Prime Minister who decides who the Supreme Court of Justices will be.. full stop. This is real power, exercised by a person whose own position of power is only bizarrely democratic.