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Raj Anand is a Toronto lawyer specializing in human rights law. (Fred Lumn/The Globe and Mail/Fred Lumn/The Globe and Mail)
Raj Anand is a Toronto lawyer specializing in human rights law. (Fred Lumn/The Globe and Mail/Fred Lumn/The Globe and Mail)

Time to Lead

Why upcoming Supreme Court appointments matter Add to ...

With two vacancies on the Supreme Court of Canada soon to be filled, The Globe and Mail asked six individuals with different perspectives to explain briefly why these appointments matter. These are their responses.

Gwen Landolt, REAL Women of Canada

Supreme Court judges are ill-positioned to make public policy decisions, but persist in doing so.

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They have limited access to social data, depend on the restricted arguments of the litigants, and the not-always unbiased media. Isolated from society, judges are not exposed to differing perspectives since there is no public debate as there is in Parliament.

This was exacerbated during the early years of the Charter, when the federally funded Court Challenges Program provided money only to left-wing organizations to bring legal challenges. Conservative organizations had to fund cases themselves, and were unable to provide significant balance in the courts.

This continues today. Unaccountable judges without any special knowledge or insight interpret the broad wording of the Charter to make public policy decisions, claiming "constitutional" reasons for doing so.

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Martha McCarthy, Toronto family lawyer central to several key victories in gay rights cases

Our Supreme Court judges shape the social and political landscape of Canada. Without them, gays and lesbians would still be waiting for Parliament to promote equality, let alone equal marriage.

Women and many other disenfranchised groups would still be outsiders too. After all, unless you're a straight, white, Canadian-born male, at some point in Canada's history you've been on the wrong side of political expediency.

In our constitutional democracy, the Supreme Court has the task of ensuring that Parliament respects the values Canadians hold most dear. So, Mr. Harper: Forget politics on this one and pick rights-respecting (and righteous) candidates. Please.

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Chris Manfredi, Dean of McGill University Faculty of Arts

Appointments to the Supreme Court matter because it is a key component of Canada's policy making structure. The court has always played this role through its common law rule-making power.

However, in the almost 30 years since the introduction of the Charter of Rights and Freedoms, this policymaking role has been enhanced. The Charter enhanced judicial policy making by expanding the range of social and political issues subject to the court's jurisdiction.

From abortion to language of education to the delivery of health care, every policy choice available to governments is ultimately reviewable and reversible by the court. Canadians need to pay attention to these appointments, and a more regular process of democratic oversight should be implemented.

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Raj Anand, Toronto lawyer specializing in human rights law

High-quality Supreme Court appointments are more important today than at any time since the adoption of our constitution. The new appointees must strengthen the court's commitment to democracy and the rule of law by better protecting those who have no effective political voice and by standing firmly against the periodic excesses of governments.

The judges must promote reform of our justice system to provide affordable access to justice. The success of their tenure will be measured through the prism of equal treatment of minorities. The upcoming vacancies therefore present a pivotal opportunity to recalibrate the court's delicate balance in protecting our fundamental rights and freedoms, as well as a true test of the government's commitment to diversity and reform.

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Jean Lewis, one of a group of parents who litigated for autism treatment for children in the Auton case

Based on my experience, appointments to the Supreme Court of Canada may not matter, but they ought to do so. From what I observed in the Auton case, the Supreme Court judges were more concerned with demonstrating consensus than in showing moral courage to arrive at a truly just decision.

Auton dealt with access to health care by some of Canada's most vulnerable citizens - children with autism. The case was so important that governments were represented by more than 50 lawyers.

After eight years, two successful B.C. court decisions and a huge emotional and monetary commitment by parents, my impression was that the justices were disengaged and the decision had already been made.

Parents and many others were shocked and felt betrayed. The disrespect shown to the disabled children, their parents and our legal process was stunning. I believe Supreme Court justices need to earn their pay and perks. The appointment process is flawed and needs to be re-examined.

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Prof. John Reid, St. Mary's University; historian specializing in aboriginal history

Canada will never be whole unless reconciliation is achieved with aboriginal inhabitants. The role of the Supreme Court will be crucial. Other important elements include negotiations, truth and reconciliation hearings and governance reforms. But the Supreme Court will undoubtedly adjudicate major issues in the future, as it has in the recent past.

The aboriginal cases that reach it frequently depend on complex bodies of evidence, with indigenous knowledge and historical analysis applied to understanding treaties and ways of living that reach back over time. Appointees to the court need the personal and juristic qualities to deal prudently with such matters.

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