This week the Liberal Government announced a new means of appointing judges to our Supreme Court that I believe all Canadians should take an active interest in. As is often the case whenever a new process is announced by a sitting government it will be rightfully subject to scrutiny and criticism from opposition Members of Parliament. Often the very same process will receive praise from those who are friends and supporters of the Government, or who may benefit from this change of policy. For this reason it is always interesting to observe what groups come out publicly in favour of a change of process or policy.
This new process for appointing a Supreme Court Justice somewhat parallels how the Liberals changed the process to appoint a Senator. In both cases the Liberal Government will first politically appoint a panel of individuals who in turn will then recommend the appointments to sit as either a Senator or in this case a Supreme Court judge. In other words those who are appointed will in turn do the appointing. Critics often describe this appointment arrangement as “by the elites for the elites” while the Government and supporters will claim it is a more non-partisan process free from political influence.
Who is correct? While it is unfair to label an appointed panel of citizens as elitist, it must not be overlooked that the Government will first politically appoint the panel members in question and as such maintains political control of the composition of the panel membership.
The greater concern that I have with this arrangement is that the public may not easily discern who is ultimately responsible if the process of selecting a Justice doesn’t yield its intended purpose- a high quality candidate that helps the highest Court function as intended. Should citizens point their finger at un-elected people who are politically appointed who now have the ability to recommend Senators and Supreme Court judges with no democratic accountability or the Prime Minister that appointed them? In my experience, joint accountability often leads to little or no accountability. For example if an MLA or an MP appoints a person to a position of service, ultimately that MLA or MP in question can be held accountable for that appointment by the people who elected him or her by either re-electing them or voting them out of public office. Having appointed panels in effect creates a buffer that in my opinion reduces democratic accountability. There is also a concern that elected officials are subject to public disclosure with respect to conflict and finances that appointed individuals are exempt from.
I will provide another example of this. As many citizens will know the Liberal Government has indicated it would like to change how Members of Parliament are elected. The Liberals have further stated that this change should not be done with a democratic referendum but rather through a series of consultations and with input from “experts” in Ottawa. One of these experts told the committee that, and I quote directly: “Middle-class people often don’t know anything more than poorer working class people, but they have a stronger sense of entitlement”. The expert then went further to say “Poor people and working class people tend to shy away from situations where their ignorance will be exposed”. In other words, the view from this expert is that many Canadians are essentially not intelligent enough to have their say on how our democratic system that helped build Canada should be changed. These comments are completely unacceptable and are precisely why a referendum is required because our democracy belongs to all Canadians, regardless of income level and expert opinion.
In the case of Supreme Court judges we know that our Supreme Court is increasingly making decisions in place of elected officials. As an example the recent ruling on legalizing medically assisted dying that reversed a previous Supreme Court ruling was done in a manner that was rushed with little consideration for the fact that an election was set to occur. Ultimately elected Members of Parliament have no ability to participate in this selection process while politically appointed but unelected panels will now have a tremendous amount of power and influence in potentially shaping Canadian society. Considering the scope of these changes and the fact that the Government seems to want to consult on almost every other aspect of public policy, this unilateral decision without broad discussion is concerning. In my view this diminishes democratic participation however this is a matter that I greatly welcome your views on. As always I can be reached at Dan.Albas@parl.gc.ca or call toll free at 1-800-665-8711.
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Dan Albas is the Member of Parliament elect for Central Okanagan-Similkameen-Nicola.