Let’s amend the Supreme Court Act so the judges are appointed for staggered, fixed, non-renewable terms. This would curb the prime minister’s ability to mould the court in his ideological image for generations to come. It would stop his political point of view being perpetuated long after he is put out to pasture. It would ensure a constant supply of energetic and representative judges, full of new ideas.

I suggest 18-year terms staggered every two years seem right for a nine-member court, but shorter terms are worth discussing.

I can hear someone objecting that this scheme might enhance the ability of a long-serving prime minister to stack the court. Five of Canada’s 22 prime ministers served for more than 10 years, and two, Mackenzie King and John A. Macdonald, for more than 18. With staggered 18-year terms, a prime minister of great longevity might end up appointing every Supreme Court judge. But any system of appointments would almost certainly allow a prime minister with such staying power to fill up the court with his ideological soul mates. One merit of the staggered, fixed-term system is that a process of court renewal would begin no later than two years after that long-serving prime minister left office, and would continue apace.

By now pretty much everyone has cottoned on to the fact that the Supreme Court of Canada is becoming the “Harper Court.” The most ideological prime minister in a long time has already appointed four of the nine sitting judges (justices Marshall Rothstein, Thomas Cromwell, Michael Moldaver, and Andromache Karakatsanis) and will soon appoint two more (justices Morris Fish and Louis LeBel will reach the mandatory retirement age of 75 before the next federal election). It’s the Harper Court all right, getting more conservative all the time. We shouldn’t be surprised. After all, we voted the top guy into office and know that he gets to appoint the judges he wants.

The problem is that the country moves on ideologically and demographically leaving the Supreme Court behind. The face of Canada changes, but the court doesn’t keep pace. Isn’t it about time, for example, that someone from a visible minority and someone from the gay and lesbian community sat as a Supreme Court justice? It remains a scandal that an aboriginal has yet to be appointed. The usual counter-argument to such a suggestion is “all that matters is legal ability,” but that retort is specious and simplistic (a subject for another column). The “keeping pace” problem is made worse because a Supreme Court appointment is solely within the gift of the prime minister, with no real democratic oversight. There is none of that pushing and shoving by elected representatives that makes sure certain legitimate interests are promoted and would ensure that the court keeps up with a country in transition.

The United States has been struggling with this problem for a long time (it was on Thomas Jefferson’s mind when the Union was created). Pulitzer Prize-winning historian James MacGregor Burns has written of the U.S. Supreme Court: “Justices throughout the court’s history have clung to their seats long after their political patrons have retired and long after their parties have yielded to their opponents or even disappeared. They have often perpetuated ideologies and attitudes that are outdated or that Americans have repudiated at the ballot box.” The problem is more acute in the U.S. because Supreme Court judges are appointed for life. But in one important respect, the situation south of the border is better than it is in our own country. The president only nominates a Supreme Court justice and his choice has to be approved by the Senate after a long and public political process. Democracy and transparency can have powerful and salutary effects on the judicial appointments process.

In the U.S., the debate over term limits has recently centred on a 2006 academic paper by two law professors, Steven Calabresi and James Lindgren. They write: “A regime that allows high government officials to exercise great power, totally unchecked, for periods of 30 to 40 years, is essentially a relic of pre‐democratic times.” They argue for 18-year staggered terms for U.S. Supreme Court justices; once the scheme was fully phased in, there would be two appointments in each four-year presidential term. One benefit would be “the democratic instillation of public values on the Court through the selection of new judges. . . .” Another would be removing the “ability of one political movement to lock up the court for thirty years, as Republicans did at the start of the Twentieth Century and as Democrats did after the New Deal.” The term limits idea was espoused by a 2012 presidential candidate. Unfortunately for the idea’s credibility, the candidate was Rick Perry, who in a TV debate couldn’t remember how many Supreme Court judges there were.

By the way, there’s nothing radical about term limits for the judges of a country’s highest court. Calabresi and Lindgren point out that members of the constitutional courts of France, Italy, Spain, Portugal, Germany, and Russia serve fixed, limited terms of between six and 12 years. The same is true of some non-European countries — South Africa, for example.

As usual, the devil is in the details. How would the scheme be phased in? The answer seems to be that it should only apply to new appointments; sitting judges would not be affected. What should be done if a justice dies or resigns prior to the expiration of his fixed term? Most agree that an interim justice would be appointed to fill the remainder of the deceased or retired judge’s term. What happens to a judge when his term is over? He retires on a fat pension, that’s what, and can do what retired judges always do — be of counsel to a prestigious law firm, chair a commission of inquiry, etc. It’s not a bad life.

Philip Slayton’s latest book, Mighty Judgment: How the Supreme Court of Canada Runs Your Life, is now available in paperback. Follow him on Twitter @philipslayton.

The Supreme Court doesn’t just decide those fancy, beloved by the press Charter of Rights cases about civil liberties, police powers, and other headline-grabbing stuff. It still resolves, for example, dull tax disputes between the taxpayer and his avaricious government. It still deals with traditional constitutional fights between different levels of government (there is a surprisingly large number of these cases — they’re almost the court’s bread and butter). Sometimes these apparently tedious decisions, easy to overlook, go to the heart of the country’s economic and business fabric.

One such case is Copthorne Holdings Ltd. v. Canada. Decided last December, Copthorne is about the Income Tax Act’s General Anti-Avoidance Rule, known to tax aficionados and legal geeks as GAAR. (Please try to stay awake.) GAAR is intended to stop abusive tax-driven transactions technically permitted by the Income Tax Act but whose primary purpose is to avoid taxation. Bad boy Copthorne Holdings had engaged in naughty transactions of this sort, but the tax department wasn’t having any of it, invoked GAAR, and denied Copthorne the tax benefits it had anticipated. Copthorne challenged the ruling, but lost in the courts below. The Supreme Court affirmed the lower courts in a unanimous and clear judgment delivered by Justice Marshall Rothstein on behalf of a nine-member panel.

The director of the Canada Revenue Agency has said the decision will not have much of an effect on how the CRA goes about its business. Most tax practitioners are skeptical and expect beefed-up CRA use of GAAR. After all, although recognizing GAAR’s limitations, in Copthorne the Supreme Court strongly endorsed the rule and its application. Tax probity was affirmed. You can bet that the CRA will be vigorously using all the tools at its disposal, including this one.

Copthorne is quite different from Lipson v. Canada, a GAAR case decided by the Supreme Court in 2009. When Lipson was handed down, Canadian tax guru Vern Krishna called it “the most significant tax decision in 70 years.” In a 4-3 decision, petulant judges divided philosophically over tax policy and took bad-tempered swipes at each other. Some judges (the bare majority) favoured GAAR and the government. The rest did not apply the rule and stood in solidarity with the taxpayer. But now, in Copthorne, the Supreme Court seems to have got its act together. The judges are all rowing in the same direction. The philosophical divide has magically disappeared.

Copthorne, unanimous, clear, and

balanced, trumped Lipson. Reaction to the decision was favourable. The Supreme Court seemed attuned to reasonable business practice and gave clear guidance to the financial and tax community. But good feelings about the court lasted less than a week. That was because Reference re Securities Act, another unanimous nine-judge decision, released a few days after Copthorne, was as bad a decision as Copthorne was good. Nine judges got it right in Copthorne. The same nine got it wrong in the reference.

For a long time, those involved in Canada’s capital market have yearned for a single national securities regulator to replace the absurd patchwork quilt of 13 sets of rules administered by 13 separate regulators, one for each province and territory. In 2006, the federal government produced a draft Canadian Securities Act intended to establish a single regulator. The draft act did not unilaterally impose a unified system, but allowed provinces and territories to opt in. The expectation was that, sooner or later, they would all embrace a national system, driven by irresistible logic and by the imperative of an increasingly international capital market.

There was, of course, the inevitable whingeing from some of the provinces, particularly Quebec and Alberta. For political cover, the government of Canada asked the Supreme Court for an advisory opinion on whether the proposed act fell within Parliament’s general power to regulate trade and commerce. The government argued that the securities market had evolved from a provincial matter to a national matter affecting the country as a whole. As a consequence, it said, the federal trade and commerce power now gave Parliament legislative authority over all aspects of securities regulation. Alberta, Quebec, Manitoba, and New Brunswick argued that the proposed scheme infringed the provincial power over property and civil rights.

Most observers thought the Supreme Court reference was pretty much pro forma. A national securities regulator was obviously an idea whose time had come. Surely a few provincial politicians playing to the gallery couldn’t derail a scheme endorsed by everybody who knew something about finance and business. The Supreme Court, it was widely assumed, would recognize reality.

But it didn’t. In an awkward unanimous judgment, the court decided that the draft Securities Act was unconstitutional. It agreed that “what the Act seeks is comprehensive national securities regulation, with the aim of fostering fair and efficient capital markets and contributing to the stability of Canada’s financial system.” But, said the court: “federalism demands that a balance be struck, a balance that allows both the federal Parliament and the provincial legislatures to act effectively in their respective spheres. Accepting Canada’s interpretation of the general trade and commerce power would disrupt rather than maintain that balance. Parliament cannot regulate the whole of the securities system simply because aspects of it have a national dimension.”

To reach this conclusion, the court used an antiquated division-of-powers approach and applied hoary precedent (it cites a case from 1881, the Parsons decision, as a leading relevant authority on the scope of the trade and commerce power). As for the argument that the securities market has been so transformed as to make the day-to-day regulation of all aspects of trading in securities a matter of national concern, the court simply rejected it.

What a bad decision! It doesn’t reflect modern business and fiscal reality. It doesn’t deal with crucial policy issues. It used a very traditional form of constitutional analysis when other approaches were available that could have led to a better result. Just when things were looking good, out comes the rug from under our feet.

Philip Slayton has been dean of a law school and senior partner of a major Canadian law firm. His latest book is Mighty Judgment: How the Supreme Court of Canada Runs Your Life. Visit him online at philipslayton.com.