This article was originally published in the Toronto Star on October 18, 2020.
It seems a safe bet that, if one were to survey Canadians, more of them would be able to identify Amy Coney Barrett than any one of the judges who sit on the Supreme Court of Canada.
This may well be attributable to the fact that Barrett has, in many ways, become just another act in the ongoing circus that is the Trump administration.
But more than that, Barrett’s nomination marks the latest milestone in the politicization of the U.S. Supreme Court, this time around, driving Democrats to seriously consider such radical options as “court-packing” by expanding the number of sitting justices.
While it’s true that we in Canada haven’t allowed our own Supreme Court nominations to become poisoned by partisan politics, the instinct to construe our own court in the image of the United States runs strong.
The media searches constantly for a simple, some would say simplistic, frame to understand the court’s dynamic, similar to the left-right, Republican-Democrat divide that characterizes the U.S., as with the “Gang of Five” of the 1990s or the Laskin-Spence-Dickson “LSD Connection” of the 1970s.
These efforts have foundered, however, because the Supreme Court of Canada, thankfully, continues to defy the reductive allure of partisanship. Why is that?
Well, let us begin with what Canada gets right. For starters, there is the nomination process itself, which in 2016, was formalized as an independent advisory panel.
Even before this reform, nominations were characterized by the relative absence of scandal. Even the messier instances, such as the Nadon Affair in 2013, tend to turn on narrow, technical grounds, such as regional representation.
No one in Canada is “Borked,” in the manner of Ronald Reagan’s 1982 nominee whose confirmation was the first to be destroyed in the partisan crucible of the Senate. We have yet, on a relative basis, to let our process be hijacked by zero-sum partisans.
But perhaps the most influential difference of all, in Canada, there is a mandated retirement age of 75. Had the late Justice Ginsburg served on the Canadian bench, she would have been forced out about a decade ago.
Instead, in the United States, federal judges can sit for life, due to a long-standing interpretation of Article III of their Constitution, which stipulates that justices “shall hold their offices during good behaviour.” Intended to reduce partisanship by insulating justices from the need to face voters or seek later employment, it has in fact made matters worse as lifespans have lengthened, raising the stakes of an open seat.
All that said, our own justice system is far from perfect. One need look no further than a pair of recent Supreme Court of Canada rulings that have escaped popular notice.
In a ruling in the case of R. v. Chouan, the Supreme Court found that the Trudeau Liberals’ changes to the jury selection process were constitutional. The Liberals had eliminated peremptory challenges of potential jurors, ostensibly in response to anti-Indigenous discrimination.
But the matter is not so cut-and-dry, and numerous legal groups representing racialized minorities had begged the court not to go along with the proposed changes, positing that they would have the opposite effect, making it instead harder to toss racists from the jury pool.
Another recent ruling, the case of Raed Jaser and Chiheb Esseghaier, found the two men did not deserve a new trial, despite the improper selection of their jury.
Taken together, these rulings highlight the potential for a slow erosion of our own justice system. Many defence lawyers have rightful concerns, but the media and the public in this country remain fixated on the Barrett nomination instead.
It is a shame for these very real dangers to Canadians to be lost or overlooked in favour of the seductive tribalism that brought us such unhelpful memes as “Notorious RBG.” There may be much amiss in the American system of justice — but in resting on our laurels, we risk ignoring concerning developments in our own. Our justice system is imperfect, and it requires constant vigilance, not just cheap armchair moralizing.