It was no surprise that Stephen Harper and the rest of his cabinet didn’t attend the big Charter of Rights celebrations held at the University of Ottawa in April. More surprising, at least to conference organizers, was the antipathy expressed by the public at large. According to an 860-person poll commissioned for that conference, 68 per cent of Canadians support the use of the notwithstanding clause to limit the Charter’s application — and thus to limit the power of the people at the conference.
“I was surprised,” says Jack Jedwab, the conference organizer who sponsored the poll. More than two-thirds of Canadians want a democratic check on the power of the judiciary. By contrast, only 17 per cent “strongly” agree with the idea that the notwithstanding clause should be rendered obsolete — an idea that is conventional wisdom within the judiciary and academia. “I was surprised because there’s a sort of stigma attached to the notwithstanding clause, or so we think,” said Jedwab.
That’s actually the real story: not that the Canadian public is wary of giving judges unrestrained power, but that the Court Party is surprised by the public’s wariness. This idea of judicial infallibility is reinforced by journalists and politicians whose avant-garde causes fare better in the hands of a few judges than at the ballot box. Viewed from within that clique, Harper’s decision to avoid the Charter conference was a staggering admission of his crudeness and political anachronism. He just doesn’t “get it.” To the general public, though, the Charter conference was nothing more than another special interest group — with a $20,000 federal government grant to
A hostile, 860-person poll about the Charter is not easily discounted, especially given that ordinary Canadians are constantly told by the establishment how much better things are under the Charter. But even more dramatic is a new 1,000-person poll by the Strategic Counsel that shows 63 per cent of Canadians believe that judges should be elected. Even Harper wouldn’t go that far, but nearly two-thirds of Canadians would.
Last November, Chief Justice Beverley McLachlin gave a speech explaining that judges are already quite accountable. She quoted the American judge Learned Hand, talking to his clerk:
“Sonny . . . to whom am I responsible? No one can fire me. No one can dock my pay. Even those nine bozos in Washington, who sometimes reverse me, can’t make me decide as they wish. Everyone should be responsible to someone. To whom am I responsible?” Turning to his shelves of law reports, he said: “To those books. . . . That’s to whom I’m responsible.”
It’s a touching anecdote, but hardly one that applies to judges like Ontario’s retiring Chief Justice Roy McMurtry. In what bookshelf did he and his unanimous court find precedent to decide in the 2003 Halpern case that the historical definition of marriage violated the Charter — and that their remedy, gay marriage, would be implemented immediately?
McMurtry was a fierce partisan his whole life, hardly the deferential figure evoked by the Learned Hand quote. Bertha Wilson, Claire L’Heureux-Dubé, Louise Arbour, and Rosalie Abella have all publicly described themselves as activists and legal innovators. Pledging one’s faithfulness to precedent would mean no legislating from the bench, no “reading in,” no “dialogue” with elected politicians. When Canadian judges behaved like Learned Hand, they were respected like Learned Hand. When they behave like street protesters, they’re treated like it.
While the Canadian public wants more accountability from the judiciary, some judges want less. McMurtry took the rather confident step this spring of announcing his preferred successor upon his retirement, his Associate Chief Justice Dennis O’Connor.
If judges can bequeath their benches to their favourite understudies, why bother having elected justice ministers at all? To those gathered at the Ottawa Charter conference, McMurtry’s wish list probably came across as enlightened succession planning by a grand philosopher king.
To the general public, it probably moved support for elected judges from 63 per cent to 64 per cent. McMurtry is one of the loudest opponents of political accountability for judges, calling the U.S. system “shocking,” pointing to the political fundraising necessary for elections, and to the influence of interest groups.
But a quick cross-reference of Canadian judges to the Elections Canada donations database shows that Canadian judges, too, are highly partisan and money obsessed. However, instead of taking political donations from voters, they give political donations to the parties that can appoint them.
Over the past 25 years, Canadian judges have used the Charter to take U.S.-style political power and celebrity. It shouldn’t be surprising that their Canadian subjects want some U.S.-style checks and balances in return.