A law professor who signed a letter of complaint against the Chief Justice of the Supreme Court of Canada would welcome Parliamentary hearings for judges before their appointment..Bruce Pardy, law professor at Queen’s University, was one of 13 lawyers to complain to the Canadian Judicial Council (CJC) over comments against the trucker convoy made by SCC Chief Justice Richard Wagner. The CJC is chaired by Wagner, but Pardy says finding a proper mechanism to keep judges in line is difficult..“You need an independent court system in order to provide for a robust rule of law. And so what you don't want is the political branches overseeing what the courts do, because you're inviting trouble there if you did that. On the other hand, if you insulate the courts completely from oversight, and you make them completely self-governing, then you have potentially created a very powerful force. And so the dilemma lies between these two bad choices,” Pardy says..The “notwithstanding” clause of the charter allows provinces and the federal government to overrule court decisions on constitutional matters for five years. Although that technically means parliamentary supremacy, Pardy says in practice it usually doesn’t work that way..“You have at least in part a system of judicial supremacy. The courts have the last word. So if the courts have the last word, and if you get it via a Supreme Court of Canada judgment, you can't appeal it because it's the highest court. Even in political terms, you can't challenge that judgment in the political realm. And you can't change the constitution very easily, because it's not set up to be easy. And then if you have the judges overseeing themselves, then it's insular.”.The professor says Congressional hearings on United States Supreme Court justices are a helpful mechanism in their appointment process. He says criticisms over their sometimes hyper-politicized atmosphere do not outweigh the disclosure they offer on a prospective judge’s perspective..“You will often get that kind of evidence at these hearings, whereas you don't really get that in Canada,” Pardy says..“One of our myths in this country is that courts are not political. I don't think that's true. Judges have their own political philosophies and ideologies. Everybody has a worldview. So that political angle of things in the States is acknowledged and explored. And it is a matter of political battles in the political arena.”.Unlike the U.S., Canada’s multi-party Westminster political system tends towards strong party discipline and usually creates majority governments. Pardy says judicial hearings would still be valuable here, even if the question of whether the judge will be appointed is usually less in doubt..“It wouldn't be such a bad idea. We have to acknowledge, though, that we have a different system of government… So right away, any hearings they have in the US context are probably going to be more meaningful than the equivalent might be in this country.”.Some judges who have been appointed to the bench by Prime Minister Trudeau have previously donated to the Liberal Party, a fact Pardy acknowledges..“That's often true too. Now, that does not automatically mean in any way that the person appointed to the bench is therefore going to favor the government in power in their decisions. That would be an unfair accusation, because that's not obvious. But it is also not obvious that there aren't political aspects to the appointment process.”.In the current framework, if the CJC recommends that a judge be removed, parliament will vote on whether to do so. The Western Standard asked Pardy why the prime minister appoints judges, but parliament only gets a say in their removal. .“That's an excellent question. I can't answer your question,” Pardy said.
A law professor who signed a letter of complaint against the Chief Justice of the Supreme Court of Canada would welcome Parliamentary hearings for judges before their appointment..Bruce Pardy, law professor at Queen’s University, was one of 13 lawyers to complain to the Canadian Judicial Council (CJC) over comments against the trucker convoy made by SCC Chief Justice Richard Wagner. The CJC is chaired by Wagner, but Pardy says finding a proper mechanism to keep judges in line is difficult..“You need an independent court system in order to provide for a robust rule of law. And so what you don't want is the political branches overseeing what the courts do, because you're inviting trouble there if you did that. On the other hand, if you insulate the courts completely from oversight, and you make them completely self-governing, then you have potentially created a very powerful force. And so the dilemma lies between these two bad choices,” Pardy says..The “notwithstanding” clause of the charter allows provinces and the federal government to overrule court decisions on constitutional matters for five years. Although that technically means parliamentary supremacy, Pardy says in practice it usually doesn’t work that way..“You have at least in part a system of judicial supremacy. The courts have the last word. So if the courts have the last word, and if you get it via a Supreme Court of Canada judgment, you can't appeal it because it's the highest court. Even in political terms, you can't challenge that judgment in the political realm. And you can't change the constitution very easily, because it's not set up to be easy. And then if you have the judges overseeing themselves, then it's insular.”.The professor says Congressional hearings on United States Supreme Court justices are a helpful mechanism in their appointment process. He says criticisms over their sometimes hyper-politicized atmosphere do not outweigh the disclosure they offer on a prospective judge’s perspective..“You will often get that kind of evidence at these hearings, whereas you don't really get that in Canada,” Pardy says..“One of our myths in this country is that courts are not political. I don't think that's true. Judges have their own political philosophies and ideologies. Everybody has a worldview. So that political angle of things in the States is acknowledged and explored. And it is a matter of political battles in the political arena.”.Unlike the U.S., Canada’s multi-party Westminster political system tends towards strong party discipline and usually creates majority governments. Pardy says judicial hearings would still be valuable here, even if the question of whether the judge will be appointed is usually less in doubt..“It wouldn't be such a bad idea. We have to acknowledge, though, that we have a different system of government… So right away, any hearings they have in the US context are probably going to be more meaningful than the equivalent might be in this country.”.Some judges who have been appointed to the bench by Prime Minister Trudeau have previously donated to the Liberal Party, a fact Pardy acknowledges..“That's often true too. Now, that does not automatically mean in any way that the person appointed to the bench is therefore going to favor the government in power in their decisions. That would be an unfair accusation, because that's not obvious. But it is also not obvious that there aren't political aspects to the appointment process.”.In the current framework, if the CJC recommends that a judge be removed, parliament will vote on whether to do so. The Western Standard asked Pardy why the prime minister appoints judges, but parliament only gets a say in their removal. .“That's an excellent question. I can't answer your question,” Pardy said.
