Legal scholars must speak up

By Frederick DeCoste

Nov 14, 2005

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By force of his long-time commitment, Jacob Ziegel is first among that very small band of Canadian academic lawyers who have been moved to decry, in scholarly journals and in the popular media, the manner by which the federal executive appoints judges to the Supreme Court of Canada, the Federal Court and the provincial superior courts.

Unhappily, the majority of law professors have either remained silent about the matter or else have spoken in defence of the status quo. Thus has the Canadian legal academy as a whole become complicit in denying Canadians the truth about the appointment processes. The reasons for this failure to act on the legal academy's duty to the public are perhaps many, though the lust for judicial office that infects so many academic lawyers and, with that, the politicization of the legal academy through the participation of academic lawyers directly and indirectly in the Liberal Party of Canada must surely rank first and second among those reasons.

The details of this failure are even more clear. The Jacob Ziegels of this world aside, Canadians have not been told by those who know (or should know) the truth and have a responsibility to speak it that the process of appointing all federal judges is corruptive of several core principles of liberal democratic governance, not least among which are the principles of transparency and of the separation of powers; that what distinguished the past process of appointing judges to the Supreme Court of Canada was nothing other than the quality of corruption that was there on display -- directly put, judges appointed to our Supreme Court under the former regime owed (and owe) their offices to an act of executive tyranny more characteristic of an authoritarian state than of any state claiming for itself the status of mature democracy; and that the process recently cobbled together by the federal executive (notably under the leadership of former law professor, Justice Minister Cotler) to replace the soon-retiring Mr. Justice Jack Major is a sleight of hand that cures none of the ills of the former process, but instead, through its pretense to principle and its crude manipulation of popular sentiment, makes them very much worse.

Canadians are owed very much more than this, by the federal state obviously, but from the legal academy especially.