Wednesday, October 19, 2005

The Role of the Courts

I write this a day after I listened to a lecture by and thereafter spoke to Peter Hogg, Canad'a leading constitutional expert. Hogg spoke primarily on the evolution of section 15 and the line of cases that had led to its most recent interpretive requirements. Perhaps more interestly two hours later, he spoke on the private medical insurance decision rendered by the Supreme Court later on. Hogg served as council in both the Same Sex Marriage reference and in the Chaouli (I've no idea how that's spelled) decision. While both these talks were interesting, I found speaking with him afterwards rather more interesting.

I spoke to afterwards about the confirmation process for justices in the Supreme Court. He was rather skeptical about the mail in recommendations and thereafter non-binding shortlisting that was currently being introduced. I suggested that a rigorous parliamentary confirmation process comparable to that in the US might be more desirable. He agreed that transparancy dictates that bringing the justices before Parliament is infinitely more desirable, and that by and large concerns about it destroying independence and becoming some sort of side show as for the most part that hasn't been the case elsewhere. However, he did express the concern that we'd find more consensus candidates appointed and wouldn't have gained some justices from unconvential backgrounds and dispositions. Hogg thought a diversity of perspectives was a valuable thing for the Supreme Court. I pointed out that less "colorful" candidates wouldn't necessarily be a bad thing. Were we to have justices in the John Roberts mold, judges and lawyers whom had a solid legal pedigree, moderate political stances and a great deal of experience - I would suspect that there would be a great deal less room to criticize the Court.

Hogg mentioned his concerns about the pervasive influence of lawyers and the courts. He stated that over the last 20 years since the Charter had been instituted, the courts had not only had a much wider perview, but he'd observed judicial restraint and deference to the legislature had erroded. He noted that the ingrained deference and attachment to precedent had significantly deteriorated, and that while the Charter is often the target of claims of activism it occurs in every other facet of our law as well. I asked his opinion on what should be done to counteract this and he responded that he had no idea. He thought perhaps the problem began in law school with the focus upon the decisions of appellate courts, when in practice most lawyers spend their time working with contracts, statutes and mediators. Although whether that emphasis will be corrected is highly uncertain.


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