In October, Albertans will be asked in a referendum: Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to have provincial governments, and not the federal government, select the justices appointed to provincial King’s Bench and Appeal courts? Premier Danielle Smith says Alberta should appoint justices to the provincial King’s Bench and Appeal courts. She is one hundred percent correct. But that has not stopped her being subsequently hammered from all directions. Not just the Left, for whom the judiciary is a well-defended colony, but also the Right, which is, well... odd. On this, there is apparent cross-party consensus, that by wanting to appoint judges to Alberta courts, she must want to politicize the judiciary. Deplorable! Outrageous! Or as the Vancouver-based Tyee thunders, ‘nothing short of evil!’The following is directed not to the blinkered denizens of the Left, but to Alberta conservatives who haven’t thought this through.You forget one thing. The judiciary in Alberta and every other province in Canada has already been politicized — by the Government of Canada (GoC)..Sitting judges will cavil at this, but the truth is first that yes, Alberta’s senior judges are indeed appointed by the GoC, not the Government of Alberta, and second that the Department of Justice does its best to find judicial candidates who will think “correctly.”To begin with, party orientation matters. The National Post reported a few years ago that “it’s no coincidence that more judges who donate to the Liberal party are brought to the bench than Conservative donors.”In a refreshingly detailed piece of journalism in partnership with the Investigative Journalism Foundation, the Post reported that among 1,308 judicial and tribunal appointments made by the Liberal government since 2016, more than three quarters — 76.3% — had previously donated to the Liberal Party of Canada. Just 22.9% had donated to the Conservative Party of Canada.Not that one would expect parity, but if Canada’s courts deliver unequal treatment to those before them, what else would you expect?.Then there’s the matter of self-identification regarding diversity. Those of us who believed appointment to the bench began with a kindly tap on the shoulder in a musty law library in recognition of someone’s perceptive application of the Common Law to a challenging case — that was once silly me, by the way — are completely mistaken.These days, the upwardly mobile lawyer or (increasingly) woke law professor applies for the job online. So, make your own assessment of the application form to be filled out, reproduced here below from the Justice Canada website..You are invited to offer your pronouns and tick boxes. Are you indigenous? Racialized? Disabled? 2SLGBTQI+? An ethnic? A woman?.Obviously, these things matter, or they wouldn’t be there. So, do you think the Liberal Government of Canada may be looking for a certain type of person, reflective of commonly held beliefs and attitudes in the narrow demographic with which they identify, who can be reliably expected to see things the way the governing party (to which they sent money) sees them?Maybe this is just me being Neanderthal, but if judges are selected from a pinkish pool of Liberal donors, with their genders and their races considered relevant to their suitability to judge other Canadians, the answer is self-evidently ‘yes.’So then, who exactly is politicizing the judiciary?Let’s leave that as a rhetorical question.The Alberta Left, of course, is content enough to have a left-wing federal government write the rules for left-wing judges.It is a surprise to me, however, that Alberta’s small-c conservatives haven’t connected highly questionable decisions such as last year’s Cowichan destruction of property rights, or the intentional, unequal treatment of individuals or groups before the courts (or in legal processes) because of their race, with the appointment of non-randomly selected judges.Which brings us back to the opinions of Alberta’s premier..Years before she entered politics, Danielle Smith understood how the Charter increases the influence of the non-elected judiciary at the expense of elected representatives. She also understood how in the post-Charter era, the so-called ‘living tree’ theory of judicial interpretation allowed judges to progressively rewrite Canadian law according to what they think the general public ought to want, rather than what the statutes actually say.She is thus saying today what she argued years ago in the pages of the Calgary Herald that Albertans deserve to be judged by people chosen because they understand Alberta — and who respect the law more than the political, social, and cultural priorities of the Liberals.It is a longstanding tradition of common law that people may be judged by a jury of their peers. It is not a politicization of the law to elevate to the senior provincial benches judges who not only understand Alberta, but also how the Liberals attempt to promote their agenda through the courts. It would, in fact, be the restoration of justice, not its politicization.How refreshing. After all, the so-called ‘living tree’ evolves a little differently in these parts.
