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Liking The Supremes January 9, 2010 It's easy for Canadians to take for granted the fact that, for the last decade or so, they've had a Supreme Court that's remarkably free of ideological extremes, partisan bias or plain old bad reasoning. All of those flaws can be difficult to avoid, especially in politicized upper courts such as that of the United States. And even Canada's Supreme Court has had its good times and bad. At the moment, it's a very good time. The quality of the court is, in many ways, a reflection of the personalities of the nine judges who constitute it at any given moment, and especially of the chief justice. So the high quality of the decisions of the last decade is a testament to the many talents of Chief Justice Beverley McLachlin. Not every Canadian will agree with every decision of the court, and indeed, the Citizen's editorial board has taken issue with a few of the McLachlin court's decisions over the last 10 years. But the court's decisions are generally well-reasoned and moderate. McLachlin, in particular, is a superb writer whose rulings can be read with pleasure by laypeople and jurists alike, and will continue to be long after she's left the court. It's clear she understands that the defence of human freedom and justice is a sacred trust. As McLachlin has pointed out in recent interviews, she arrived on the job after Canadian society, and Canadian courts, had already reached a certain level of comfort with the Charter of Rights and Freedoms. The early battles of interpretation had been fought. All the same, the court under McLachlin has had to deal with some incredibly difficult social and political issues. On historic questions -- same-sex marriage, security certificates, the rights of patients to timely health care, freedom of speech in the Internet era -- the court has acquitted itself well. It hasn't been afraid to make history, but it has avoided hyperbole and managed not to veer onto the turf of the executive or legislative branches -- even when cowardly politicians, such as Paul Martin during the same-sex marriage debate, practically begged it to. With the possible exception of McLachlin and one or two others, most Supreme Court justices can walk down the streets of Ottawa without being recognized. In fact, Canadians might have an easier time naming members of the U.S. court. That's a little sad, given that these nine men and women are charged with the preservation of Canada's fundamental values, but it might be the price we pay for having a court that holds itself apart from the political fray. The biggest downside of an unelected court, of course, is that it could become a pasture for party loyalists, as the Senate has. So far that hasn't happened to the Canadian Supreme Court, but it could. A more transparent appointment process might help prevent patronage from trumping merit in the future. The Supreme Court will continue to answer very difficult questions in
the next few years, particularly as regards the balance between individual
rights and collective security. We can't know whether the court will make
the right decision every time. The judges are fallible. But we can take
comfort in knowing that these nine judges understand the value of both
security and rights, and are unlikely to treat either with disrespect. |