Our high court judges and the Peter Principle.

Why do we appoint only lawyers to the Supreme Court of Canada? This made sense when the Supreme Court's job was to interpret laws that legislative assemblies enacted. By training and experience, lawyers are qualified to clarify laws and apply them to changing circumstances.

Nowadays, however, the high court not only interprets laws but assesses them against the Charter of Rights and Freedoms, in light of which it may strike them down, revise them or create new ones. In doing so, it invests the often vague and ill-defined language of the Charter with specific meanings that have political, moral and philosophical implications.

Lawyers are no more qualified than the rest of us to do this. Their political biases, moral preferences and philosophical assumptions are not necessarily superior to ours. Consequently, it no longer makes sense to limit the top judicial appointments to lawyers.

Before the enactment of the Charter, we expected Supreme Court judges to do what they were especially qualified for, and we were rarely, if ever, disappointed. By enabling them to do what they are not especially qualified for, the enactment of the Charter institutionalized the Peter Principle in the Canadian judiciary.

The PETER PRINCIPLE holds that participants in a hierarchy tend to rise to their level of incompetence. Supreme Court judges risk doing this when they nullify, rewrite or create laws. By such actions, they mimic legislators and settle issues of public policy that cannot help but have political, moral or philosophical consequences.

Although authorities on the law, judges are not necessarily competent to formulate public policy. Neither, for that matter, are legislators. But when legislators rise to their level of incompetence, we can vote them out of office. We have no such recourse with judges, who are immune to electoral discipline and unaccountable.

It seems to me that if we are to be stuck with an unaccountable court that has the power to change public policy, some of the judges should be generalists rather than legal specialists. We elect generalists to other legislative bodies, so why not appoint them to what in some instances has become the supreme legislative body? We select generalists for juries and give them a say in criminal and civil cases. Why not select them for the Supreme Court and give them a say in constitutional cases? Why not, in other words, balance the technical expertise of the lawyers with the common sense insights of the citizenry in constitutional decisions where common sense really matters?

I can think of a number of cases in which the Supreme Court could have benefited from some extra-legal common sense. Take Dobson v Dobson, for example, in which the issue was whether the authorities could enforce the protection of an unborn child from harm inflicted by a glue-sniffing mother. The court ruled that a pregnant woman and her unborn child are one. Consequently, the child has no separate life or rights and is not eligible for protection.

A generalist on the court might have pointed out that both science and common sense recognize that a mother and her unborn child are biologically distinct individuals. Why, a generalist might have asked, should biological realities defer to the law? Shouldn't the law defer to reality? Or is the law above reality?

At this point, a generalist might have urged that fetal life be "read in" to the section of the Charter that guarantees equality before and under the law and equal protection and benefit of the law. After all, in an earlier case, Egan and Nesbit, sexual orientation was "read in" on grounds that it is analogous to other protected characteristics.

The Supreme Court could also have benefited from some extra-legal common sense to help it distinguish between sexual orientation and sexual behaviour; deal with the defence of implied consent in cases of sexual assault; strike a balance between the rights of accused criminals and the victims of crime; interpret Indian treaties without inflating aboriginal rights; and respect people with politically incorrect religious beliefs, the free expression of which is guaranteed by the Charter.

When it minded its own business, the Supreme Court was held in high regard. Many of us still consider Supreme Court judges to be sacrosanct and above criticism. When tempted to indulge in such judicial enthusiasm, we should remind ourselves that judges are lawyers with good political connections.

Think about it.

Joe Campbell writes from Saskatchewan and contributes frequently to Catholic Insight on a wide range of issues but especially on Catholic social teaching.