Supreme Court of Canada judges are the most powerful individuals in Canada. They are supposed to be legal experts whose function is to decide matters of law, but they have become instead, activists who, under the Charter of Rights, reject legislation passed by Parliament and make the law up to suit themselves.  As a result, Supreme Court judges are determining public policy without any input from Canadian citizens by way of Parliament.  For example, judges have struck down the abortion law, legalized drug injection sites, struck down the law on prostitution, legalized assisted suicide and other such atrocities only because they felt it was time for such changes – changes not based on law, but on their own personal perspectives.  As a result, the Supreme Court has become the most dangerous part of our system of government.

Further trouble now looms for Canadians as Justin Trudeau announced in July that he will implement a new procedure for the appointment of Supreme Court Judges. He has set up a so-called “independent and non-partisan” Advisory Board which is to submit three to five recommendations for appointment to the Court.  Nothing could be more fraudulent than his new appointment system.  This system is guaranteed to exclude any social conservatives’ appointment to the Court, and reduces judicial “merit” to be determined on the basis of gender, colour, creed, race, class, sexual orientation and bilingualism, not necessarily legal expertise.

Trudeau’s Biased Advisory Board

The Advisory Board is to consist of seven members to review applications and then submit the list of three to five names to the Prime Minister, who still retains the sole prerogative of making the appointments, regardless of whether the individuals have been recommended by the Board.

This Advisory Board is far from non-partisan or neutral. It’s headed by the Prime Minister For-a-Day (or for two months to be exact), former Conservative Leader, Kim Campbell, who brought her party from a majority position in 1993 to holding only two seats in the House of Commons – losing her own seat in the process.  Ms. Campbell is a noted radical feminist, who actually does not have a conservative bone in her body, but obtained a Conservative nomination for her political advantage only, since at that time she would not have been elected in B.C. as a Liberal.  The four other members of the Advisory Board include nominations by several legal organizations, all of which are noted for their liberal leanings.  These legal organizations have already nominated a partisan Toronto lawyer, Susan Ursel, to represent them on the committee.  Ms. Ursel, is an outspoken supporter of the lesbian/gay, bisexual, transgender, and two-spirited community (LGBTT) in Canada. The Minister of Justice will appoint the three remaining members of the Advisory Board – sure to be all staunch Liberals.

Only when the candidate has been selected by the Prime Minister will he then face a question and answer session by MPs and Senators. This session is to be moderated by an outside law professor.  Since the session is after the fact there is little good it will do.

One thing is clear, Trudeau has stacked the deck against the appointment of any social conservative to the Supreme Court. His “diversity” on the bench will not be that of the ideological or intellectual variety, but ensures only the appointment of liberal judges.

Trudeau’s concern for biological, sexual orientation etc. “diversity” precludes the possibility that the best and most qualified judicial candidates will be appointed to the court. Rather, the excellence or qualifications of the proposed jurists are no longer important, but instead, his/her gender, creed, class, race and sexual orientation etc. are.  But, judges are supposed to assess the facts and apply the law, and are not supposed to reflect or represent special interest groups, their identity or their aspirations.  Trudeau, with this Advisory Board, has created a new norm for Canadian judges.

Candidates Must Be Bilingual

What is further disconcerting about Trudeau’s plan is the additional requirement that Supreme Court judges must now be functionally bilingual. This will be a stumbling block in making appointments since this greatly reduces the pool of available lawyers from which to choose a judge.  The provinces of Quebec and New Brunswick will inevitably be the major source of such appointments.  This bilingual requirement, incidentally, is based on the myth that Canada is a bilingual country.  It may be touted as such, but the reality is the country is not bilingual.  The Supreme Court of Canada has previously worked well with simultaneous translation facilities – what has changed?  Nothing, but Trudeau’s arrogance, and limited understanding of the issue.

According to Trudeau, therefore, the ideal candidate for an appointment to the Supreme Court of Canada would be a black or Asian female, lesbian, who, with any luck, would also be lame. She would, of course, have to have a law degree and be called to a provincial bar – but her proficiency in the law would apparently be a secondary consideration.

No Requirement For Regional Representation

In establishing his new appointment system, Trudeau also made no mention of the tradition that Supreme Court judges include representation from each of Canada’s regions. For example, an appointment to the court has been traditionally saved for an appointee from the Atlantic Provinces, the west receives two seats, and Ontario and Quebec three seats each.  The failure to acknowledge this regional balance, which has been a staple of constitutional institutions in Canada since it was founded in 1867, is a concern.  Top judges should come from across the country so as to bring a proper understanding of regional context to their judgments, since a key facet of the court is to rule on matters of national implication.  The court cannot be a national court, obviously, when it excludes judges from different regions of the country.

This failure to consider a required balance on the court had led to the Atlantic Provinces’ Trial Lawyers Association launching a legal challenge in the Nova Scotia Supreme Court. It argued that Trudeau was attempting a unilateral and unconstitutional change to one of Canada’s foundational institutions.

Trudeau’s Appointment Avoids the Legal Challenge

To avoid this legal challenge, Trudeau on October 17, 2016 appointed a judge from Newfoundland to head off the constitutional challenge.

Trudeau’s appointment was Mr. Justice Malcolm Rowe from the Newfoundland Court of Appeal. The latter is a judicial activist who believes judges should not be bound by the law, but should create new laws to make a “definitive” statement on the law.  He stated the role of the Supreme Court was to craft laws “rather than to simply interpret them”.  Judge Rowe is also strongly leftist in his perspective.  Prior to his appointment to the Bench, he was an assistant to former Newfoundland Liberal Premier Brian Tobin, with whom he helped abolish denominational schools in Newfoundland in the mid-1990’s, provided rights for homosexual and lesbians, and extended full health funding to the Morgentaler abortion clinic.  Heaven help us!  “Objectivity” clearly will not be a part of Judge Rowe’s judicial performance on the Supreme Court.  We can, as a result, have no confidence in the Supreme Court of Canada as he now joins the other activist judges already on the court.

Trudeau has selected “bilingualism” and “identity” as the critical issues for appointing judges to the Supreme Court – not legal merit. This is bizarre, and is a function of the fog swirling around in Trudeau’s head. The new appointment system is superficial, ill-thought out, and lacking in substance and practicality.  It is a fraudulent system, proposed to give the appearance of objectivity and fairness, but in effect, will not provide a shred of any of this.

REALity  Volume XXXV  Issue No. 12  December 2016