Monday, June 13, 2005

CREDIT: Bruno Schlumberger, The Ottawa Citizen
Supreme Court Justice Jack Major

Supreme Court of Canada Justice Jack Major says contenders for his job would not be scared off if the Martin government allowed MPs to publicly question them before being named to the high court.

"Taking the ordinary qualified candidate, I don't think anyone would say 'no' simply because there is going to be an interview," said Judge Major, a low-key, plainspoken Albertan whose retirement will create a vacancy for a Prairie jurist by next fall.

"Most judges or senior lawyers at that stage, if anything, have egos that are large enough that they think they are so well-qualified that what's a hearing going to do? Just reinforce everybody's view that they are going to be very good appointments," said Judge Major, flashing the dry humour that has carried him through 13 years of gut-wrenching life and death decisions on everything from fetal rights and assisted suicide, to the death penalty and Quebec separation.

In a recent wide-ranging, exclusive interview, Judge Major also said there should not be a designated seat on the high court for an aboriginal jurist.

"I don't support any reserved seat on the Supreme Court for any group," he said.

Judge Major was co-author of last week's judgment that struck down the ban on private medical insurance in Quebec -- a decision court watchers say is consistent with his abiding concern for "average Canadians."

In the first comment by a Supreme Court judge on controversial changes to the judicial appointment process proposed by the Liberals in April, Judge Major said he's still not convinced the Conservative party's demands for public vetting of top court candidates would elicit useful information.

However, he also rejects the Martin government's suggestion that public questioning, or even a private interview, of a Supreme Court nominee should be ruled out because it could stray into "inappropriate or embarrassing" ground that could deter good candidates.

Nominees to the U.S. Supreme Court are publicly questioned before being appointed.

While Judge Major does not advocate or oppose public vetting of candidates, he said "most of the judges I know, I think, would go through a proper hearing ... if there was a purpose seen to it," so long as it does not include personal attacks or partisan mudslinging.

"I don't think very many people would be deterred unless they had some skeleton that they were afraid of," he said.

The former top civil litigator and avid golfer, who lifts weights and runs almost five kilometres most days is still pondering what his next professional challenge will be when he moves back to Calgary, where he and wife, Helene, have purchased a home. At 74, he's not planning to give up work.

One of the most controversial issues the top court has recently faced has been same-sex marriage. In the interview, Judge Major dismisses as "scare tactics" allegations by some that civil marriage for gays and lesbians will trigger Charter challenges resulting in state approval of polygamous or incestuous unions.

"There are lots of valid reasons why you wouldn't permit marriages inter-family, health reasons, a lot of public good reasons," he said.

He suggested the heated debate over civil same-sex marriage is inevitable in a secular society that remains heavily influenced by religion. "(Courts) are responsible to the nation as a secular nation, and I don't know that courts can ever solve that problem. We are not telling religious groups how to behave, but we are applying the Charter to a secular society."

Judge Major conceded that governments might be justified at times in using the Charter's failsafe "notwithstanding clause" to override Supreme Court rulings. But he warned that to do so could pose enormous political risk. The issue arose again last week when Judge Major and three other judges used the Quebec Charter to strike down that province's ban on private health care insurance because long wait times for medical services threaten the health of citizens.

"There is no assumption that the court is always going to be right and the government is always going to be wrong," acknowledged Judge Major, speaking generally.

"If we make a decision that doesn't really reflect what should be happening in the nation, and the government feels they could make a persuasive case (in the court of public opinion), well, then I guess the notwithstanding clause would serve a purpose. (But) the notwithstanding clause is a very difficult thing for a politician to use. You can picture the headline: 'Notwithstanding your Charter right, the government is taking it away from you.' That wouldn't be a very popular headline and I think governments realize that."

Judge Major also warned against calls for an aboriginal seat to be created on the nine-judge bench.

"If we departed from the principle of appointing the most qualified person, it would be a ... serious mistake."

He noted there are now four female judges on the Supreme Court where there were none 25 years ago. Similarly, as the number of First Nations lawyers grows, qualified aboriginal jurists will inevitably earn seats on the top court and their number should not be limited to just one, he suggested.

A prominent Conservative before he was appointed to the high court by former prime minister Brian Mulroney in 1992, Judge Major's track record has defied expectations, suggested Ottawa lawyer Henry Brown.

"When he was appointed, people said: 'Oh, he is a Conservative' and that he would carry that into his judgments. But I think that has not been the case. He has consistently had his eye out for the average Canadian. He's found for the little guy again and again and again. It doesn't matter whether it was in a criminal case or in a human rights case."

Osgoode Hall law professor Jamie Cameron describes Judge Major as a "reserved, steady and stable" presence who, unlike more flamboyant colleagues, has not sought the limelight.

Judge Major prefers to leave broad-brush lawmaking to politicians.

But he has also been a stalwart of Supreme Court majorities that gave robust Charter protection to the presumption of innocence, and fair trial rights of accused people.

The Charter's guarantees of individual rights and freedoms to those accused of crimes are essential to protect the civil liberties of all law-abiding Canadians against unjustified state incursions, as might occur, for example, in an age of sweeping anti-terrorism laws, he says.

"It's always surprised me that there has been more outcry on rights that are being given in our history, than rights that are taken away."
© The Ottawa Citizen 2005