Academic journal article
By Marceau, Richard; Macklin, Paul; Toews, Vic; Nystrom, Lorne; Herron, John
Canadian Parliamentary Review , Vol. 26, No. 4
On May 6, 2003, Richard Marceau introduced a Private Members' Business motion to authorize the Standing Committee on Justice and Human Rights to study the process by which judges are appointed to Courts of Appeal and to the Supreme Court of Canada. The following extracts are taken from debate on this motion.
Richard Marceau (Bloc Quebecois): There is an old principle in English common law, that justice must not only be done, it must be seen to be done. The purpose of this principle, the very foundation of our justice system, is to maintain the highest possible level of public confidence in the judiciary. The current process of appointing judges, however, is in direct conflict with this principle, and clouds the image of justice.
There are many examples to support this statement. Last summer, the Prime Minister appointed Justice Michel Robert, who had served on the Quebec Court of Appeal since 1995, to the position of Chief Justice for Quebec. This is a very important position, in Quebec's judicial system.
The Minister of Justice and Attorney General announced, on August 8, the appointment of the Marie Deschamps, a judge of the Quebec Court of Appeal, to the Supreme Court of Canada.
These two individuals no doubt, enjoy an enviable legal reputation, which therefore surely justifies their appointment to such important positions. However--since justice must be seen to be done--it is reasonable to wonder, as members--and the general public will not hesitate to make its views known--whether their appointment has anything to do with their commitment to the Liberal Party of Canada or their connections to the latter.
These two examples seem to show or at least clearly suggest politicization of the courts. In today's society, this politicization or this appearance of politicization, even a hint of it, can seriously jeopardize the public's respect for the courts and the judiciary.
If we consider the important role of the courts today, particularly given their greater duties, if only due to appeals related to the Canadian Charter of Rights and Freedoms, or their involvement in the evolution of various social debates such as same-sex marriage, aboriginal claims and the decriminalization of marijuana, we must avoid at all costs any association between the judiciary and the political arm.
These judges, who are not elected, make decisions which have an increasing impact on the creation of public policy in Canada and sometimes go beyond what Parliament might have wished.
This is an argument of some weight in favour of a review and democratization of the process of appointing judges, which unfortunately some will surely criticize. But we must resist and we must hold this debate. It is very likely that the public will agree that the entire matter needs to be looked into.
I am making a solemn appeal to my colleagues across the way. Let them keep their eyes and ears open and especially let them not jump to a conclusion too hastily. I hope that the Parliamentary Secretary to the Minister of Justice with whom I had the opportunity to work on the Standing Committee on Justice and Human Rights, will not take a dogmatic stand and will instead agree to a serious study, as we had in connection with same-sex partners, an issue of equal importance for Canada.
I would like to remind him, and all members of the Liberal Party that Mr. Martin, said the following in his speech to the students of the University of Toronto's prestigious Osgoode Hall:
We should reform the process surrounding government appointments. The unfettered powers of appointment enjoyed by a prime minister are too great ... Such authority must be checked by reasonable scrutiny conducted by Parliament in a transparent fashion ... To avoid paralysis, the ultimate decision over appointments should remain with the government. But a healthy opportunity should be afforded for the qualifications of candidates to be reviewed, by the appropriate standing committee, before final confirmation. …