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The Supreme Court of Canada

In 2000, Prime Minister Jean Chretien (b. 1934) appointed Beverley McLachlin (b. 1943) to be the first female Chief Justice of the Supreme Court of Canada. She's seen here wearing the traditional fur-lined Supreme Court robes.

Like most western democracies, Canada has an all-powerful supreme court sitting at the top of its judicial hierarchy with the power to overrule all lower-ranking courts, and even Parliament itself. Consisting of nine elderly and experienced judges, the Supreme Court only hears appeal cases which it deems to present an important constitutional question that deserves clarification. Most commonly, these are cases in which an accused Canadian believes an existing law, of which he has been found guilty, should not be a law at all, because it contradicts some fundamental human right protected by the Charter of Rights and Freedoms.

The ability to overturn laws of Parliament is a very dramatic power, and the Supreme Court is one of the most powerful political institutions in Canada for this reason. Rulings of the Supreme Court are closely watched and covered by the Canadian media and can often generate enormous controversy. For example:

  • In the case of The Queen v. Morgentaler (1988), the Court ruled the government cannot prevent Canadian women from having access to an abortion.
  • In the case of The Queen v. Keegstra (1990), the Court ruled that Canadians can be legally punished for making “hate speech.”
  • In the case of Rodriguez v. British Columbia (1993), the Court ruled it’s illegal to help a sick person commit suicide.

In recent years, it has also become commonplace for the federal government to ask the Supreme Court of Canada to occasionally rule on things without the pretext of a trial. Such requests are known as Supreme Court “references.” They’re non-binding, but still help clarify the law. For instance:

  • In Reference re: secession of Quebec (1998), the Court ruled that the province of Quebec could not legally separate from Canada without the approval of the Canadian government.
  • In Reference re: same-sex marriage (2004), the Court ruled that marriage between two men or two women was constitutional.
  • In Reference re: Senate reform (2014), the Court set out the constitutional rules for reforming the Senate of Canada.

The nine judges of the Supreme Court are appointed by the prime minister, and serve until age 75, so at any given time the Supreme Court is a medley of many different appointments of many different administrations. Traditionally, prime ministers put a great deal of effort into ensuring the court always maintains a fair geographic balance, with at least one justice for each major region of Canada.

  • Official website of the Supreme Court of Canada

Canadian Judges

All judges in Canada are appointed, and the vast majority are appointed by the federal government. And when we say “federal government,” what we really mean is the Prime Minister of Canada, working closely, in most cases, with the federalAttorney General, the head of the Canadian Department of Justice.



The traditional outfit for both Canadian judges and lawyers is a long back robe and black vest, and a special "tabbed" collar. Unlike elsewhere in the Commonwealth, wigs have never been popular in Canadian courtrooms.

This is a considerable responsibility for politicians to hold, and obviously has a great deal of potential for abuse. And in the old days, indeed, it was common for all sorts of hacks and party donors and the like to wind up as judges, as successive prime ministers regarded the judiciary as merely one more source of patronage gifts to friends and loyalists (along with the bureaucracy). These days, to the government’s credit, things have cleaned up considerably. Greater scrutiny of judicial appointments by both the media and, more significantly, the powerful Canadian Bar Association, has ensured that most judges are now selected primarily on the basis of their experience, education and expertise, and not mere party membership or ideology.

Most of the men and women who get appointed as Canadian judges are career lawyers (it’s a mandatory requirement for judges of the Supreme Court), but it is not uncommon for the occasional professor, civil servant or retired politician to get the nod once in a while, too.

Overall, the appointment system as it presently exists is quite divisive. Lawyers and judges tend to love the status quo, but journalists and the public tend to hate it. Calls for elected judges, or judges appointed by Parliament rather than the PM, have been growing louder and louder in recent years, and the debate is one of the most prominent legal controversies in modern Canada.

 

 


Date: 2015-12-11; view: 707


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