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Lorne Gunter: Judicial reform needed to counter courts’ progressive bias

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Gee, maybe Alberta Premier Danielle Smith wasn’t completely out to lunch after all when she suggested in early February that Ottawa give the provinces more input into judicial appointments.

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Now Ontario, Saskatchewan and Quebec have joined Smith’s much-maligned campaign to have the federal government consult provincial governments on the appointment of superior court (King’s Bench) and appeals court judges within their provinces.

When Smith first made her demand of the federal government, the usual suspects complained — mostly lawyers, legal organizations and law professors.

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Their major complaints were that Smith was threatening our democracy and judicial independence by asking that provincial politicians be given a say in the selection of judges.

I failed to understand at the time — and still don’t understand — how having politicians in Ottawa pick our judges is somehow more objective than having politicians here do the same thing.

Yes, there are judicial advisory committees that officially make the federal recommendations in each province, but those committees’ members are chosen by politicians in the federal government who are very careful to appoint only those persons who are members of their party or who share their ideological biases so that those committees can be relied on to recommend new judges who will mostly think and rule the way the government of the day wants.

There are lots of objective judges in every province. But no Liberal government is going to appoint an overtly Conservative judge, or vice versa.

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In my original column on Smith’s demand back on Feb. 5, I mistakenly said that 80 per cent of judges appointed by the Trudeau government had made donations to the Liberal party. That was wrong. Of judges who made donations before being appointed (most made no donations), 80 per cent made donations to the Liberals.

The point is still the same, though. If you’re a lawyer who’s made donations before being appointed, you are four times more likely to be appointed if you made Liberal donations than Conservative or NDP ones.

“Progressives,” who have had their own way in the legal system for decades, think the current way of judicial selections is purely factual and objective. Alterations suggested by conservative-minded politicians are dangerous attempts to undermine Canadian values.

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There was even a rally of legal professionals on the steps of the Alberta legislature after Smith’s announcement urging the premier to keep her “hands off our courts” and accusing her and her government of sliding into “tyranny” with their use of the notwithstanding clause.

Smith made an error when she said she wanted to be able to “direct” judges. Politicians directing judges’ trials and rulings would be dangerous. That crosses a line into judicial interference by the legislative branch. Politicians get to appoint judges, but thereafter have to be sure to keep their hands off.

However, wanting to ensure Ottawa appoints federal judges for this province who “reflect the values and expectations of Albertans” is hardly an assault on democracy. It almost certainly is an assault on “progressive” dominance of our institutions, an assault that is long overdue.

Clearly, Saskatchewan, Ontario and Quebec are fed up, too. By joining Alberta’s efforts to force change on Ottawa, they are signalling their desire for a judiciary that is more respectful and responsive to provincial and regional concerns.

A good indication of why those four provinces should worry can be seen in a current Supreme Court case on Quebec’s use of the notwithstanding clause. A “progressive” federal government is urging a “progressive” court to strike down the Constitution’s notwithstanding clause. But the clause that allows Parliament or individuals provinces to shield their legislation from judicial review is the only reason six of 10 provinces agreed to the Charter of Rights and Freedoms in the first place in 1982.

Without Section 33, federal courts would always be superior to elected governments. Already, in the last decade, the Supreme Court has struck down double the number of provincial bills it had overturned in the previous decade.

It is this “progressive” and centralist bias in our system that Smith is trying to counteract.

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