Justice Marshall Rothstein, Stephen Harper

By the nose and down
the garden path

Saskatoon, Thursday, March 2, 2006, by : Marjaleena Repo


What a spectacle it was: the public probing of the Harper government nominee to the Supreme Court, televised and broadcast for the nation in its entirety. The session was announced in advance as being “historic,” and immediately afterwards applauded, with editorials and commentators declaring in unison that “the sky didn’t fall,” that the process had been a success, despite an occasional naysayer. We have now reached a new level of “openness”, “transparency” and "democracy”, we are assured. The MPs on the ad hoc committee, set up for the show, received accolades for having behaved well, unlike during the question period in the House. Open line callers added their praise by declaring that they liked the new judge who had a sense of humour and sounded like an ordinary person. All in all, it was peaches and cream in the post-event published reactions.


In reality, what we saw was the emperor with his new see-through clothes. The session was a make-believe from beginning to end. The judge was already chosen and the probe, if one can call it that, was after the fact, nothing more than a polite meet-and-greet session without the cocktails. It was a job interview the day after the hiring, done to create an illusion of new openness, accountability, transparency and increased democracy, the trademark promises of the new government which in its first week had acted contrary to each by snatching a newly-elected Liberal, David Emerson, into the cabinet, appointing a non-elected crony, Michael Fortier, not only to the senate but also into the cabinet in charge of a major ministry, and raising a multitude of eyebrows by making Gordon O’Connor, a long-time lobbyist for the defence industry, the minister of defence.



The sham process around the new judge was no doubt meant to gloss over these serious misdeeds and to lull the country into a false sense of security about the looming radical change one among many planned by the Harper government. It had not taken long for the Conservatives to cancel a national and much-needed daycare plan which was supported by the other three parties, to take Canada deeper into the hot war in Afghanistan (where we should not be in the first place), to making approving noises about the Missile Defence Shield which a great majority of Canadians oppose, and also pulling out from an international treaty, Kyoto, all of the above without any participation from parliament. Changing the court appointment method was more of the same: the modeling of Canada after the U.S.



The Supreme Court had been a steady target for the Conservative party and its antecedents, the Canadian Alliance and The Reform Party, who habitually referred to judges as “activists” with “an agenda”, forcing them, on more than one occasion to publicly defend themselves against the accusation. The Conservatives simply didn’t like many of the decisions made by the court, and had a plan to take control of it, making sure that the “right kind” of person was appointed, now and in the future. The innocuous-sounding and -looking process now started is the first step in conditioning the public to accept a process whereby judges will be examined not just after they have been appointed but when first nominated, and where the grilling of all the nominees is bound to be far different from the polite affair that took place in Ottawa, with an end goal to produce a politically correct Supreme Court in tune with the ideology of the government in power. A similar process has gone very far in the U.S., where the confirmation hearings of judges have been both protracted and contentious.


The Supreme Court of Canada is an institution that must remain at arms length from any government or ideology. Until today, the appointments, while done by the prime minister, were vetted by many agencies and organizations, as well as representatives of provincial governments, all with experience with the justice system, knowledge of the potential nominees and an understanding of the court’s requirements. The judges simply didn’t pop out of the head of a prime minister, and the processes to choose them were developed over the years, producing a high caliber of Supreme Court judges, with whom there have been few if any problems. As the saying goes, if it ain’t broke, don’t fix it.


Yet a very dangerous kind of fixing is now taking place, carefully dressed in a bland garb to avoid alerting Canadians to the Harper government’s true intentions of giving us, if not sooner then later, an American-style Supreme Court, where the candidates have to sell themselves in a high-pitched and public contest. We are, in the true proverbial fashion, being led by the nose down the garden path, while the foundation of one our central institutions is being chipped away in big chunks.

Marjaleena Repo is free lance writer with a special interest in social and justice issues. She lives in Saskatoon and can be reached at mrepo@sasktel.net.


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