Ottawa, ON: Today, on November 12, the Supreme Court of Canada (SCC) begins hearings on 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.
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.
Despite recent reforms to the manner in which SCC judges are appointed, the SCC is still largely an extension of the power of the Prime Minister who appoints its judges. This aspect of the appointment process 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.
www.termlimits.ca is a proposal to limit the judicial tenure of appointed SCC judges to a fixed non-renewable term of 12 years. 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 proposal 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 of between six and twelve years. Under our proposal, 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).
“A fixed 12-year non-renewable term limit for Supreme Court of Canada 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”, said Chris Schafer, executive director and lawyer with the Canadian Constitution Foundation (CCF).