Canadian Prime Minister Stephen Harper opened up a new era this week when for the first time in the country's history a 'nominee' to the Supreme Court of Canada appeared before a bi—partisan Parliamentary committee and answered questions about his views.

In the past, appointments to the court were made solely by the prime minister with no vetting or confirmation process whatsoever. But Harper, elected Conservative prime minister on Jan. 23, had promised to make government more open and more accountable.

To this end, he also intends to turn the Senate into an elected body and to allow free votes in the House of Commons on all issues that would not result in the government's defeat. Currently senators are appointed solely at the discretion of the prime minister, and, particularly under Liberal governments, Members of Parliament are expected to toe the party line.

The new Supreme Court justice is Marshall Rothstein, 65, currently a justice of the Federal Court of Appeal. He was appointed to the Federal Court of Appeal by former Progressive Conservative Prime Minister Brian Mulroney. While the committee questioning Rothstein had no veto power over the selection, Justice Minister Victor Toews recommended Harper approve the appointment.

The Canadian legal establishment is not pleased. The judiciary (in general), bar associations, university law deans and law professors have opposed Harper's initiative. But Rothstein himself appeared quite happy to face an all—party review.

"I have no fear of saying it is a good thing," he commented.

Judicial activism in Canada

Rothstein immediately told the committee he is no judicial activist out to make social policy from the bench.

"I'm not sure I would be comfortable thinking judges should be advancing the law with a social agenda in mind. It seems to me a social agenda is an agenda for Parliament. Where Parliament wants to advance the law in social terms, that's it's job. Your job," he told MPs on the committee.

He added,

"The court's job is really to take what you (Parliamentarians) say about social issues and try to interpret it as best we can and apply it to the facts."

Rothstein's testimony was a huge relief to Conservatives who have been highly critical of recent Liberal appointees to the Supreme Court — and other higher courts — charging the appointees are usurping the roles of elected representatives.

Indeed, Chief Justice Beverley McLaughlin, who has opposed Harper's initiative, has openly suggested the courts have a role to play in shaping society even if individual Canadians do not understand that. McLaughlin was appointed to the court by Mulroney, but made Chief Justice by former Liberal Prime MInister Jean Chretien. McLaughlin has increasingly upset Conservatives by her activism.

Most assessments were there was not a single conservative voice on the court since Alberta's John Major retired in December. Conservative MPs have charged the Liberal government had purposely appointed activist judges to put in place policies that may be unpatable to many Canadians and that Liberal politicians dared not institute themselves for fear of a voter backlash.
Rothstein, from Winnipeg, Manitoba, vowed to serve as a neutral arbitrator driven by judicial independence and without a personal agenda. He has been known as a thoughtful, hardworking justice with no over political ties.
He repeatedly made it clear he believes judges should be absolutely independent of government.

Televised testimony

The 3.5—hour televised session was tame by American standards.
Members from all parties were polite and indicated they understood why Rothstein could not answer questions on potential issues that may come before him.

With touches of both humility and humor, Rothstein said he would judge each case that came before him on the individual facts of that case. In one of his sparks of wit, when asked if he thought the nine—member court should be expanded to accommodate a shifting geographical mix, Rothstein answered, "If I don't make it on this round, sure!"

Critics of the new process — including the former Liberal government — insisted it would result in insulting  behavior towards appointees and pointed to the U.S. process in which nominees often face denigrating questioning.

It's fair to say most Canadians — if they are at least interested in the Supreme Court — find the U.S. process both denigrating and alarming. The browbeating of the likes of Robert Bork and Clarence Thomas have disturbed both politicians and legal circles in Canada.

Harper's appointment of Rothstein

Coincidentally, Rothstein was actually on a short list of nominees drawn up by former Liberal Justice Minister Irwin Cotler who vigorously opposed appearances before a bi—partisan committee.  It's thought one reason Rothstein was on the Liberal shortlist was to give the appearance of an open appointment system, but then came the Jan. 23 election the Liberals lost. Cotler himself had promised reform, but when ousted Liberal Prime Minister Paul Martin appointed two new justices to the Supreme Court, only Cotley himself appeared before a Parliamentary committee to answer questions about the appointees.

Harper had to move quickly on a new appointee because the Canadian court, with only nine justices in total, would have faced the possibility of a tie vote unless the current vacancy was filled.

Harper lauded Rothstein and praised his process of appointment saying it "marked an historic change" in the way justices are appointed. The Conservative prime minister said the process bring "unprecedented openness and accountability" to the system.

"The hearings allowed Canadians to get to know Justice Rothstein through their Members of Parliament in a way that was not previously possible," said Harper.

Canadian Supreme Court controversies

The Supreme Court has become an increasingly controversial issue in recent years because of its activist and social agenda.

Just weeks ago the court ruled that 'swingers' and wife—swapping clubs were not breaking the Criminal Code because, being private and voluntary, they did not pose a threat to community standards.

The court — and lower courts — has also tended to side with Native (Aboriginal) claims involving land, hunting and fishing. Rothstein carefully sidestepped questions on Aboriginal rights, poverty and other social issues.
It would be reasonably safe to say few rank and file Canadians could name even the Chief Justice of the Supreme Court and certainly even fewer, outside of the politically—active or legal circles, could name any of the other justices. Supreme Court justices are not public figures anywhere near the extent they are in the U.S.

Part of the reason for this is that, obviously, without a vetting process, and with an appointment being made arbitrarily by the prime minister of the day, there has been little public discourse on appointments. Also, until quite recently, it was considered dangerous to criticize any justice on any court, higher or lower.

That became to change after left—leaning Liberal Prime Minister Pierre Trudeau 'repatriated' the Canadian Constitution from Britain in the early 1980s and added a Charter of Rights and Freedoms to it. Conservatives at the time predicted this would eventually lead to the judiciary undermining the federal Parliament and the provincial Legislatures, which is what has been happening. Until Trudeau's constitutional moves, the Supreme Court rarely was asked to make constitutional decisions since the laws were pretty much set in stone. But with the Charter of Rights and Freedoms came all kinds of special interest groups declaring their rights were being discriminated against.

Looking ahead

Almost certain to come before the Supreme Court in the near future will be the question of legalizing polygamy as a religious right guaranteed under the Charter of Rights and Freedoms. There are some offshoots of radical Mormon sects in Canada — one in British Columbia openly practices polygamy — and it is thought to quietly exist in certain immigrant communities

Rothstein, who made his reputation as an expert on commercial law, continuously made it clear the federal Parliament and provincial Legislatures are the supreme law—making bodies in the nation. He distinctly said most laws passed by democratically elected legislatures do not intend to violate the Charter of Rights and Freedoms.

"Therefore, judges have to approach the matter with some restraint. The most important thing is that they apply a rigorous and thorough analysis and if they do that, then I'd say that they are doing their job. If they depart from that, it might be a different thing."

Veteran Conservative MP Diane Ablonczy said after the hearing she believed Rothstein had "a strong respect for the democratic role of Legislatures" in the nation. Alternatively, Real Menard, a member of the separatist and left—leaning Bloc Quebecois party, said he preferred to see activist judges on the bench. The Bloc Quebecois has also criticized the appointment because Rothstein does not speak French and is not familiar with the Quebec Civil Code.

One legal expert who is in adamant favor of the bi—partisan hearing concept is Patrick Monahan, Dean of Law at York University in Ontario, who believes the new scrutiny process will be a safeguard against the outright politicization of the Supreme Court by discouraging a prime minister from nominating a politically—tainted individual who is "outside the mainstream....."

Even opponents now admit now the new process has been started there is no going backwards.

Paul Jackson is an award—winning Canadian journalist who has spent 40 years writing about Canadian, American and international politics for many of Canada's major metropolitan daily newspapers He is now Editor Emeritus of the Calgary Sun in Calgary, Alberta.