Campaign seeks fixed terms for SCC judges

Supreme Court of Canada judges should have their terms fixed at 12 years, a campaign launched this week is urging.

The Canadian Constitution Foundation’s campaign comes as the Supreme Court is debating whether to impose fixed terms on senators.

“We thought it would be a good time to launch the campaign because the question of term limits is being decided by the Supreme Court of Canada itself,” says Chris Schafer, the foundation’s executive director.

Schafer practised constitutional and regulatory law at Gowling Lafleur Henderson LLP before joining the foundation in 2010.

The campaign is largely driven by the concern that Supreme Court of Canada judges remain in their posts long after the prime minister who chose them has left office.

“This is just another extension of the [prime minister’s office’s] power. That’s a concern for democracy,” says Schafer.

It may be unrealistic to expect prime ministers to eradicate their own power to appoint judges, but fixing the length of time their appointees can serve would help to limit a government’s influence, he argues.

The idea of fixed terms for Supreme Court judges isn’t new. Writing in Canadian Lawyer last year, lawyer and author Philip Slayton proposed 18-year terms staggered every two years.

“By now, pretty much everyone has cottoned on to the fact that the Supreme Court of Canada is becoming the ‘Harper Court,’” he wrote.

The “most ideological prime minister in a long time” had already appointed four of the nine judges sitting at that time, he added.

The Canadian Constitution Foundation believes 12-year terms staggered every two years would be the best option.

This is because in other democratic countries with fixed terms for constitutional judges, such as France, Italy, Spain, Portugal, and Germany, appointees generally stay in post for between six and 12 years.

Terms at the lower end of that range may mean judges are overly focused on finding work after they leave the court, says Schafer.

The foundation’s proposals apply only to newly appointed judges. They wouldn’t affect sitting judges.

It’s not clear exactly how the change could be made. One theory is that, because the Supreme Court Act lies outside of the Constitution, Parliament could simply amend the legislation. However, there’s no consensus on this.

Schafer hopes the court will deal with the issue indirectly as part of the Senate debate.

It could also come up in its deliberations on the appointment of judges related to Justice Marc Nadon’s controversial nomination in October.

Schafer thinks there’s sufficient support for the change on both sides of the political divide.

“There are a number of Conservatives who would support this because they [feel], rightly or wrongly, that the Supreme Court in the past has been used by principally Liberal prime ministers to appoint loyal judges who create law and don’t interpret law,” he says.

“Now Harper has been in power for so long, there are people, on the centre and left politically, worried that Harper is stocking the court with people who are in favour of mandatory minimums and other things.”

As a charity, the foundation isn’t actively lobbying the government but wants to provide education and information in order to spark a debate.

It has launched a web site, termlimits.ca, where people can read more about the campaign and endorse it if they like.

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