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February 4, 2002

Canadians want to elect court

Two-thirds, poll shows: Supreme Court 'implementing policy by legal fiat'

Chris Cobb
Ottawa Citizen
National Post

OTTAWA - Canadians want to elect justices to the Supreme Court of Canada and abandon the current system of appointing the nine members of the nation's highest court with no public vetting.

An Environics poll released yesterday found that two out of three Canadians surveyed favour the election of Supreme Court justices. The poll, which surveyed 2,000 Canadians, found support for election of the justices was lowest in Ontario, with 65% in favour, and highest in the West and Atlantic Canada, where 71% favour election.

In the United States, Supreme Court justices are appointed by the President, subject to congressional approval. There is no such approval process in Canada, where Cabinet -- effectively, the Prime Minister -- appoints the justices.

Vic Toews, the Canadian Alliance justice critic, said yesterday the poll results reflect the feelings of many Canadians.

"At the very least," he said, "there needs to be some review of these appointments by elected officials -- Members of Parliament and elected Senators."

"These justices are straying further and further away from legal doctrine and implementing policy by legal fiat. And are in the job until age 75. Given all that, it would be useful to know what their inclinations are before we appoint them to the court."

Mr. Toews said the issue will be on the agenda at the party's policy convention on April 4.

Ed Ratushny, a University of Ottawa law professor who specializes in studying the Supreme Court, said Canadians who support elected justices would quickly change their minds if they fully understood the ramifications.

"I can understand the attraction," he said, "because it appears more democratic. But it would severely undermine the Supreme Court's independence."

"Think of it. If a judge runs for election, he or she needs a platform and then has to go out campaigning. The winner would go into the court with a pre-conceived agenda and severely tarnish the independence of the judiciary."

Candidates running for election to the court would also need money, added Mr. Ratushny, most of which would likely come from legal firms.

"There would at least be a perceived obligation to those who donated to the campaign."

Canadian governments have a long record of appointing effective, independent Supreme Court appointees, said Mr. Ratushny.

The Supreme Court, created in 1875, is Canada's court of last resort for criminal and civil cases. It has become especially powerful since the Constitution Act was passed in 1982 and is now the guardian of all constitutionally-guaranteed rights and the watchdog of Parliament.

And while the vast majority of people surveyed want a say in who sits on the Supreme Court, they are generally happy with a system that gives the judiciary -- rather than politicians -- the final say on individual rights and freedoms.

The Charter of Rights and Freedoms is the centrepiece of the Constitution and protects individual rights of all Canadians. It was signed into law as part of the Constitution Act by then prime minister Pierre Trudeau and the Queen in a special ceremony on Parliament Hill in April, 1982.

Overall, the poll suggests that Canadians are proud of the Charter of Rights and Freedoms and see it as a unique and increasingly important symbol of national identity.

The poll found that the Charter got high ratings across the country, but especially in Quebec and Atlantic Canada. Canadians in all social, economic and linguistic groups said the Charter plays a significant role in protection of individual rights.

The Environics study, based on telephone interviews with 2,000 adult Canadians, was commissioned by the Association for Canadian Studies, an umbrella group for university and college Canadian study departments.

Of those surveyed, 82% said the Charter has become an important symbol of Canadian identity.

Fifty-six per cent said the Supreme Court of Canada should get the final say on fundamental rights of Canadians and 35% said the decisions should rest with Parliament.

"Canadians obviously have a fair degree of confidence in the judiciary," said Jack Jedwab, director of the Association for Canadian Studies, "and in that regard, the poll is an affirmation of the current system. But here is still considerable debate around the Charter which is the way it should be."

The poll was conducted last month to mark the 20th anniversary of the Charter of Rights and Freedoms. It is considered accurate to within plus or minus 2.2 percentage points, 19 times out of 20.

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