McLachlin to Parliament: Appoint a New Judge by the Fall

Chief Justice Beverly Mclachlin’s rebuff of a (preposterous) call for her resignation made by a coalition of Christian and right-to-life organizations in response to her involvement in granting the Order of Canada to Dr. Henry Morgentaler, (see TheCourt.ca’s Christopher Bird’s comment) overshadowed another interesting remark the embattled Chief Justice made at a Canadian Bar Association meeting in Quebec City last week. Unconventionally, McLachlin CJ. issued a plea to Parliament to appoint the next Supreme Court of Canada (“SCC”) judge post haste. Though her remarks lack the sensationalism of either the call for her resignation or her response, they certainly merit some consideration.

It is “very important” McLachlin CJ. told reporters, that the SCC begin its busy fall season “in full strength” (as reported in the Toronto Star). Absent a nominee to replace Justice Bastarache (who retired last June), the court will have have to sit seven judges to avoid the possibility of a stalemate, McLachlin CJ. explained. “If the court [was] divided and we were sitting seven,” she went on to say, “there might be a little bit of uncertainty” as to whether the outcome of the decision would have changed “had two other people been on … the court.”

The Chief Justice’s comments are perplexing for two main reasons. First, though candid, they are politically risky. At bottom, McLachlin CJ.’s remarks amount to an admission that, without a ninth member on Canada’s top court, a diminished precedential value will attach to any controversial decisions that the (seven-judge) court renders. Therefore, though presumably intended to put pressure on the Harper government to move fast in appointing the next Supreme Court Justice and thereby enhance the court`s credibility, it is entirely possible that the Chief Justice`s comments will dampen its authority until the next Judge is appointed.

This is confounded by the fact that, particularly in in the area of criminal justice, the Federal Government and the SCC have routinely butted heads in recent years. In fact, in the past few months in particular, several of the top court’s decisions have been poorly received by the feds, (Canada (Justice) v Khadr, [2008] 2 SCR 125 (May 23, 2008), R v DB, [2008] 2 SCR 3 (May 16, 2008) as well as the companion cases, R v AM, [2008] 1 SCR 569 (April 25, 2008) and R v Kang-Brown, [2008] 1 SCR 456 (April 25, 2008) are just a few examples).

In the event that a seven-judge court reaches a split decision that the federal government dislikes, (especially if it is a 4-3 decision), McLachlin CJ.’s admission that the jurisprudence of a seven-judge court lacks the same level of credibility as a nine-judge court could embolden the federal government to ignore the decision, or, to bide its time, then challenge it after installing a judge with a judicial temperament that is more compatible with the government’s objectives.

McLachlin CJ.’s comments are also significant because, at bottom, the Chief Justice is attempting to exert an influence on Supreme Court nomination process. To be fair, her motivations for doing so seem squarely administrative in nature. Nevertheless, it is not clear that McLachlin CJ. should be inserting herself into the selection process. Just as the unwritten constitutional principle of judicial independence dictate that Parliament should stay out of judicial decisionmaking, the unwritten principle of democracy counsels against allowing unelected members of the judiciary to interfere with political processes.

Although the extent to which partisan politics should be allowed to creep into the SCC is a matter of considerable debate, it is far less controversial that the appointment process itself, (as per s. 4(2) of the Supreme Court Act, RSC 1985, c S-26), is a responsibility that resides with the federal government.