On Nov. 12, the Supreme Court of Canada (SCC) is hearing the Senate Reference. Among other questions, the federal government has asked the SCC to examine the constitutionality of various term limits for Senators. With momentum gaining speed for reform to the Senate, which could include term limits, the SCC ought to be subject to a term limit as well, considering that Parliament is already subject to a de facto "term limit" in the form of regular elections.
The SCC has emerged as a powerful body for public policy debate in Canada, largely as a result of its power to interpret the Constitution, principally the Canadian Charter of Rights and Freedoms. Since the adoption of the Charter in 1982, the SCC has become one of the most formidable players in Canadian politics.
In post-Charter Canada, a lot of questions that were once strictly political and were decided by politicians we elect and could un-elect, have been reframed as legal questions to be decided by judges whom we do not elect and whom we cannot un-elect.
The SCC is supposed to act as a check on the concentration of power in the Prime Minister's Office and Cabinet. However, due to the current appointment process, albeit better then it used to be since reforms introduced by Harper in 2006, the SCC is still largely an extension of the power of the Prime Minister who appoints SCC judges.
This aspect of the appointment process for SCC judges is compounded when one prime minister or federal political party remains in office over the period of several elections. This currently allows a prime minister who is no longer in office to effectively dominate the SCC with their appointments who will remain on the bench long after they have retired or lost an election. When Prime Minister Harper eventually loses an election or retires, the SCC will essentially be a Harper Court given the number of successive appointments he has made to the bench.
The considerable power possessed by judges on the SCC and the length of tenure served by judges long after the Prime Minister that appointed them is no longer in office, raises important considerations for the manner in which they are not only appointed to this influential body, but also what happens once they are appointed.
This is why the judicial tenure of appointed SCC judges ought to be limited by amending the federal Supreme Court Act. A non-renewable term of 12 years makes sense. This would only apply to new appointments; current sitting judges would not be affected. The start of terms for new judges on the SCC would be staggered two years apart so that two judges will retire from the Court during every four year federal government term in office, given the operation of fixed election date legislation. The mandatory age of retirement of 75 years of age would remain in force. This would serve to rejuvenate the SCC on a regular basis and enhance their legitimacy and functioning.
A judicial term limit would also be consistent with practices in other similar European countries and more in line with modern democratic norms. Most democratic countries provide for some sort of term limit for constitutional judges. For example, judges of the constitutional courts of France, Italy, Spain, Portugal, Germany, and Russia, serve fixed, limited terms of between six and twelve years.
Currently, the Prime Minister can appoint judges to the SCC with minimal checks and balances on judges once appointed. Although judges only serve during "good behaviour", removal from the bench is extremely rare. In effect, there are no other formal checks or balances for judges once appointed to the SCC.
A 12-year term limit also maintains the important principle of judicial independence. Under such a term limit, SCC judges would not have to seek office, seek reappointment, or concern themselves with the political popularity of their decisions. Security of tenure would not be affected because a judge could not be terminated during his or her term without cause (SCC judges will continue to hold office during "good behaviour" as is currently the law).
I happen to think that recent reforms to the appointment process for SCC judges has brought more public scrutiny, transparency, and accountability to the institution. A fixed 12-year non-renewable term limit for SCC judges would be an improvement over the current status quo, consistent with democratic norms around the world, in addition to allowing for regular renewal on Canada's highest court.
To learn more about this proposal, visit www.termlimits.ca.
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