The Toronto Star
Monday, January 19, 1998

Let's stop gambling on Supreme Court judges

by Allan C. Hutchinson

When John Sopinka was catapulted straight from legal practice to the Supreme Court, I told a journalist that his appointment was something of a "pig in a poke". The next day, it was reported that I had said that Judge Sopinka, not his appointment, was "a pig in a poke". It took me some time to live that down.

What I intended to convey was that you had no real idea what kind of judge you were getting - it was something of a crap-shoot.

I still feel the same about the practice of appointing a legal practitioner directly to the country's highest court. It is a bad idea. Such a high-stakes and responsible position ought not to be the stuff of chance and speculation.

I know little about Ian Binnie, the new appointment to the court. He has a solid reputation as a lawyer of considerable experience, technical acumen, and good judgment.

He has many of the attributes that would have endeared him to the government, especially the fact that he is bilingual and a federalist.

There is no reason to conclude that he will do a bad job. But therein lies the rub. There is little evidence to say what kind of job he will do.

On matters of such significance, Canadians deserve to know more about the people to whom they will grant massive powers.

If Binnie turns out to be a bad judge, there is no realistic prospect of getting rid of him. Supreme Court judges have constitutional security - they can never be pushed, but must elect to jump.

Of course, John Sopinka turned out to be a strong judge. But this was far from a sure bet. Indeed, some might argue that, if he had revealed his political hand as a trial or appellate judge, he might not have made it to Ottawa.

But the point is that we just don't know whether Ian Binnie will prove to have the right judicial stuff - only time will tell.

At least with existing judges, there is a public record that can perhaps stay the hand of government in showing preference for one candidate over another.

In the United States there is a public process of ratification in which nominees can be questioned about their approach to judging in general and controversial issues in particular.

While the American system has many flaws, it is not a rubber-stamp charade - something like one in five nominees have been rejected.

In Canada a position on the Supreme Court is a gift from the prime minister. Apart from political gamesmanship, there are no constraints on his choice - any lawyer of 10 years standing is eligible.

This kind of patronage is unsightly and offensive.

Moreover, the fact that the prime minister saw fit to overlook the legitimate claims of a number of very talented women and people of colour in the judicial ranks does little to meet well-founded claims that the Supreme Court is the preserve of the usual elite groups and the repository of establishment values.

The fact that, at the end of the 20th century, there has been only one Jew and no person of colour appointed to the court and that the appointment of a woman would still be a notable event is a sad comment on Canadian politics and democracy.

However, every dark cloud has a silver lining. Appointments such as Binnie's tend to give the lie to the oft-made claim that there is some special magic or skill to the judicial role. And that decisions by Supreme Court judges deserve special respect for no other reason than because they are the product of seasoned and sagacious veterans.

This recent appointment suggests quite the contrary. And this is no bad thing.

The Supreme Court's decisions are nothing more (and nothing less) than a group of lawyers doing the best that they can to better and worse effect; they have no particular expertise other than the fact that they have had the opportunity to do it.

Now that the Supreme Court has acquired such immense powers, an occasional reminder that the emperor had no clothes is no bad thing.

Allan C. Hutchinson is a law professor at Osgoode Hall Law School.

Copyright © 1998 by The Toronto Star. All Rights Reserved. Reprinted with permission.