Supreme Court justices are political appointments, and that’s a good thing

SCC

By Jackson Doughart, AIMS policy analyst

The federal government wants to remove partisanship from Supreme Court appointments. It will refer task of choosing candidates to a panel of experts who can evaluate potential new justices.

With respect, I think that the government is making a mistake in reasoning its process this way. Arms-length selection procedures are justified for non-political appointments, such as determining who will audit the national finances, or do renovations to the prime minister’s residence, or do payroll for bureaucrats, or build and repair infrastructure.

But it is a category mistake to view the supervisory institutions of our system – i.e. the Senate and the Supreme Court – as above politics. These bodies do not merely hold the government and Parliament to account on procedural grounds; they also do so on normative, or value, grounds – and once you bring values in, you have to consider popular mandate.

Supreme Court justices, especially, are not merely tasked with ensuring that Parliament has passed a law with the correct number or readings, or that the necessary number of votes was cast, or that the bill received royal assent. They also have to evaluate its content, ensuring that the law conforms with the values enshrined in the constitution.

How someone evaluates constitutionality depends in part on one’s view of the world. On an issue relating to free speech, for instance, a more conservative justice would probably lean toward a more generous interpretation of that liberty. More progressive-minded justices would probably lean toward circumscribing expression rights in the interest of shielding minorities from hate speech.

The distinction doesn’t stop here: early socialist critics of the Charter – such as former BC legislator Andrew Petter – objected that the document did not guarantee “positive rights” to government welfare and healthcare, and recognized a liberty of contract that could hamper organized labour or intimate the existence of property rights. Given the stretching of the constitution’s meaning and scope that results from Section 1, an NDP-appointed justice could have a very different hermeneutic from his or her predecessors.

In a democracy, it behooves the person chosen as prime minister to appoint justices in accordance with the people’s choice. By voting for one party or another, one is – in addition to supporting the party that one wants to form government – endorsing the discretion of that party’s leader in choosing a Supreme Court justice.

So a prime minister really owes it to the voters who put his party in power to appoint someone who aligns with their worldview. Pushing the task off to a panel of experts doesn’t get around the importance of getting the values of our justices correct.

Tax-free U.S. retailers. Coming soon to your community?

LLBean

By John Williamson, Vice-President, Research

Since border enforcement and protection is a federal responsibility it is Ottawa’s responsibility to set the tax and duty limit exemption on consumer purchases entering Canada.  The limit is currently $20 but Ottawa is being pressured to boost it to $80 or even $200 for online purchases from the United States and overseas.

Increasing the tax exemption limit means online order destined for Canada won’t be charged HST or even U.S. state tax.  Consumers would rejoice.  Yet, it would treat two similar transactions differently and put domestic Canadian retailers at a competitive disadvantage since HST would continue to be applied on purchases made within Canada –  both locally at a neighbourhood store and online from Canadian-based shippers.  This is bad tax policy.

My recent AIMS column, which appeared in the Telegraph Journal and the Financial Post [click here to read] discussed why it is essential to maintain the neutrality of the HST on all consumer purchases.  It is also important for the provinces to enter this debate since any change would reduce provincial HST revenues.  New Brunswick along with Newfoundland & Labrador increased the HST over the summer.  Prince Edward Island will soon follow.  Nova Scotia did so several years ago.  These provincial governments say they need added tax revenue.

The Retail Council of Canada estimates the tax loophole would reduce provincial HST revenues in New Brunswick by $40-million.  Finance Minister Cathy Rogers was asked about the impact on the provincial treasury.  She opted to remain more or less neutral since it is a decision for Ottawa.

It is wrong for provinces to stay quiet about a federal tax change that would exempt the HST only on online sales made by foreign retailers after provincial governments hiked the tax on local Canadian retailers.  The change would give foreign vendors a sizable 15% tax advantage in Atlantic Canada, particularly when stores like Maine-based L.L. Bean ship to Canada for free.  Minister Rogers, along with other provincial finance ministers, should take a position.

Bias? Our Bias is the Market

By Alex Whalen, AIMS Operations Manager

The Guardian newspaper of Charlottetown wrote an editorial last week entitled “Money Talks.” In it, they discuss the potential for bias at Canadian think-tanks in light of recent stories in the New York Times allegedly exposing bias in some United States based think-tanks.

The implication of The Guardian editorial was that biases at these institutes, such as ours, may be hidden and connected to financial interests. AIMS President and CEO Marco Navarro-Génie took the opportunity to respond in an op-ed that appeared Journal-Pioneer.

Navarro-Génie starts by addressing the notion of bias, and goes on to say that at AIMS we *do* indeed have a bias. He writes:

The notion that anyone can be completely unbiased is a benevolent fiction. It suggests that we can be completely objective in relation to what we know and believe. To claim perfect objectivity, or that one has no bias of any sort, is to acknowledge that one has no singular perspective on anything. It is an admission of intellectual poverty.

Ok, so if we all have biases, what about AIMS?

The market is our bias. We choose to study economic issues that will improve markets or will raise awareness of the virtues of markets.

How exactly might such a bias play out? He goes on to say that our bias leans against unnecessary regulation, high tax burdens, cartels and subsidies that favor producers at the cost of consumers, and other forces that rob people of their creativity and entrepreneurship.

To read Navarro-Génie’s full piece, click here.

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