Democracy Watch, an organization that works toward empowering Canadians and Canadian democracy, again turned to Federal Court to challenge the Canadian judicial appointments process. The organization’s frequent turns away from democratic institutions like Parliament speak to dwindling confidence in any sort of responsible government. The organization’s judicial challenge, in this case, speaks to the continuing colonial reality that is Canada’s parliamentary democracy.
The colonial reality to which I refer is a strong Crown—that is, a strong executive.
Canada’s parliamentary system has been influenced since its inception by foreign political concerns. As a British colony, Canadian parliaments and provincial legislatures were superintended by governors. Though our Queen is now Canadian, she is, and her predecessors were, British first, and the Governor-General remains a symbol of our colonial past.
Far be it for me to suggest a change to this arrangement: I don’t think a radical shift is necessary. I am concerned about the state of our parliaments when a problem with judicial appointments is not a subject of sustained parliamentary inquiry. The executive branch instead seems to have free reign to make appointments that cross into the overly political. I think that Democracy Watch is equally concerned with this point.
My concern redoubled when an academic asked to give some background on this piece flatly replied that ‘as order-in-council appointments, there’s very little role for Parliament to play.’ This statement is factually accurate. The governor’s council has always made these decisions without parliamentary involvement, but this fact misses the point. The Crown’s pick of judges might not be subject to parliamentary approval, but the judicial appointment process is subject to parliamentary oversight.
Democracy Watch applied for judicial review against the federal judicial appointments process on November 5, 2020. The application alleges that the Attorney General of Canada considers candidates for appointment as superior court judges by referring to their political history, which creates a biased bench, thus undermining judicial impartiality.
There is truth to Democracy Watch’s claim. The Liberal Party of Canada maintains a database called Liberalist that it shares with the Prime Minister’s Office. The PMO uses the database, traditionally an election tool, when vetting judges. Liberal ministers, MPs, and other party officials have also been implicated in the vetting process. Democracy Watch’s court filing challenges these practises.
Odds of success
A court filing, however, doesn’t really strike at the heart of the matter. A political appointee can be an impartial judge because the legal system defines impartiality as ‘an absence of prejudice or bias, actual or perceived, on the part of a judge in a particular case.’ This narrow definition reflects judges’ roles as arbiters of particular facts, not general issues.
To be sure, impartiality has an institutional element. The Supreme Court recognized a test for institutional bias:
Step One: Having regard for a number of factors including, but not limited to, the nature of the occupation and the parties who appear before this type of judge, will there be a reasonable apprehension of bias in the mind of a fully informed person in a substantial number of cases?
Step Two: If the answer to that question is no, allegations of an apprehension of bias cannot be brought on an institutional level, but must be dealt with on a case-by-case basis. [Original emphasis]
Step one is the obvious issue raised by Democracy Watch in its filing, but it is unclear whether the government’s use of information regarding political contributions affects the appointee’s judicial decisions. Such an undertaking would require massive statistical analysis. Canadian superior courts rendered 620 944 civil judgments in the 2018-19 fiscal year. Combing through those cases to find patterns for a specific judge’s decisions is prohibitively expensive and time-consuming.
The breadth of cases suggests that Democracy Watch cannot establish a firm causal relationship between a political appointment and biased judgments. The legal system, moreover, presumes that judges are impartial unless there is proof to the contrary.
Democracy Watch has a tough row to hoe.
Enduring colonialist mentalities
Canada’s democratic development has historically proceeded through resistance to the colonizing Crown. The difficulties imposed upon governors-general by pre-Confederation legislatures forced them to accede to responsible government. That system of government confronted restive legislatures. Ministers had to convince their colleagues—even colleagues on their benches—that the executive’s will should be done.
As Canada became more independent through parliamentary resistance to royal control, the executive became naturalized and, thus, more capable of exercising control over Parliament. This move plays itself out in the historical consolidation of power in the Prime Minister’s Office. The colonial master, now largely forgotten, is replaced by an appointed official that bears the colonial royal imprimatur.
My charge of a continuing colonial reality in our parliamentary democracy is borne on parliamentarians’ reaction to this renewed centralization of power. They’ve done quite literally nothing. Commentators—journalists and pundits—point to the increasing politicization of legal disputes as a problem. This politicization is a problem, but it is caused by parliamentary inaction.
Analysis of Democracy Watch’s legal action is evidence of the problem. Wayne MacKay, a professor emeritus at Dalhousie’s Schulich School of Law told the Globe and Mail that Democracy Watch’s application is a political ploy to pressure government. The Law Times reported Mr. Wade Poziomka, Democracy Watch’s counsel, saying that the organization’s
first choice is to work with federal politicians and other stakeholders to achieve this goal. If litigation is necessary, however, Democracy Watch will argue the merits of its case before the Federal Court.
The court filing, coming as it does in a minority Parliament, seems meant to spur the opposition parties in the House of Commons to action. Democracy Watch has run campaigns to stop patronage appointments and unfair law enforcement. It is unclear, however, how Democracy Watch has engaged with these parties or with individual members regarding the subject of its present legal challenge.
What’s clear, though, is that parliamentarians in a system of responsible government like ours must hold the government to account. Members of Parliament and Senators, regardless of political persuasion, are delegated the responsibility of supervising the Crown and its ministers. This is a primordial duty, one that I have pointed up in other posts.
The point is trite but deadly serious: when confidence in Parliament fails, judicial challenges take on increasingly political colour. We shouldn’t bemoan these assays. Take them for the symptoms that they are and vote for MPs who can, regardless of party, have the presence of mind to criticize executive government when the government may be criticized. Speak also with senators, who are more independent than ever, to encourage them to poke and prod government.
Being an active subject means emulating the parliamentary example of Canada’s forebears. Tough judicial challenges only go so far. Concerted pressure for a more critical Parliament is the way.