This article was originally published in Maclean's Magazine on September 6, 2004
Critics Lambaste Review Process for Supreme Court Nominations
IT WOULD HAVE been quite a show. Justice Rosalie Abella of the Ontario Court of Appeal, long a feminist hero and champion of minority rights and now Paul Martin's pick to fill one of two vacancies on the SUPREME COURT OF CANADA, squaring off on live TV against hostile Conservative MPs. Imagine the fireworks over gay marriage alone - Martin and Justice Minister Irwin Cotler apparently did. So instead of letting a committee of MPs and lawyers grill Abella and a second nominee, the less controversial Justice Louise Charron, also of the Ontario Court of Appeal, Cotler stood in for them. While it was the first time a justice minister has defended Supreme Court nominations before a committee, last week's hearing fell far short of the public scrutiny of judges many thought Martin meant to institute when he promised last year to let MPs review his choices. Court watchers couldn't help wondering how Abella might have fared speaking for herself. "I know Rosie," said Peter Russell, a University of Toronto political science professor emeritus. "She wouldn't have wilted."
Martin's choice of Abella turned the heat way up in the debate over the review process. Her track record makes her a lightning rod for criticism, mostly from the political right, of so-called judicial activism. Appointed to the Ontario appeals bench in 1992, she wrote the landmark 1998 Rosenberg ruling that extended spousal benefits to gay couples. As author of a royal commission report on employment in 1984, she encouraged new policies to boost the hiring of women and minorities - an approach her critics say amounts to setting quotas. While she has many fans in the legal and academic establishments, there can be no denying that her appointment is politically charged, especially with the top court slated to consider the gay marriage question this fall. Abella and Charron both have track records that strongly suggest they will support Martin's plan to broaden the definition of matrimony to include same-sex couples.
Conservative MPs were careful, though, not to target Abella directly, saving their harshest criticism for the review process. The party's justice critic, former Manitoba attorney general Vic Toews, dismissed the committee as a "rubber stamp," and deputy leader Peter MacKay called the hearing with Cotler "window dressing." The Canadian Bar Association welcomed the appointments of Abella and Charron, but also called for "a more open process." The association recommends an advisory committee for appointing Supreme Court judges that would include parliamentarians, federal and provincial government officials, the chief justice of the Supreme Court, and representatives of lawyers' groups. But Cotler did not hint at any openness to that idea, defending the tradition under which the justice minister consults judges, provincial attorneys general, and bar association and law society members on the choice. The ultimate power to make a selection rests solely with the Prime Minister. "I think they want to keep the power," Russell said of the government's reluctance to consider an advisory committee, "and that bothers me."
Cotler may yet consider tinkering with the system. But any change will come too late to affect the appointments of Abella and Charron. In Abella's case, a more public process would have showcased one of Canada's most accessible legal thinkers. She has described former chief justice Brian Dickson and justice Bertha Wilson, key figures on the Supreme Court in the era just after the adoption of the 1982 Charter of Rights and Freedoms, as "the Fred and Ginger of the Charter, who choreographed some dazzling new routines." More seriously, Abella has dismissed it as "unrealistic to say that judges should not impose their values or make law." And she urges judges not to worry about public opinion. "Performing the task properly may mean controversy and criticism," she said in a speech last year in Dublin. "But better to court controversy than to court irrelevance, and better to court criticism than to court injustice." Shielded by the appointments system from having to answer criticism directly, Abella will now take her penchant for controversy to the Supreme Court of Canada.
Maclean's September 6, 2004