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Judicial Appointments to the Supreme Court of Canada

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I. Introduction

Justices Arbour and Iaocobucci recently announced that they are retiring from the Supreme Court of Canada, positions that must be filled by summer 2004 for the Court to address its busy fall schedule. This news, coupled with Prime Minister Martin’s promise to reform the appointment process as part of his efforts to address the “democratic deficit” and Conservative Party leader Stephen Harper’s past criticisms of the Court and court appointments generally suggests that reform is coming to the appointment process, whether one supports reform or not.

This paper will describe the current process, identify its strengths and weaknesses, articulate a basic set of principles that should be met by any appointment process and examine various options for reform. Recommendations will also be made about an appropriate process.

This paper suggests that there are sound and compelling reasons of principle to support reform but that those same principles also indicate that some types of reforms are acceptable while others are not.

II. The Current Process for Appointments to the Supreme Court of Canada

Formally, the legal source for the existence of the Supreme Court of Canada resides in the Constitution Act, 1867 (formerly known as the British North America Act). Under section 101 of this Act, the Parliament of Canada has the legal authority to provide “for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada”. Pursuant to this constitutional authority, the federal government has promulgated the Supreme Court Act. Under section 4(2) of this legislation, judges are appointed by the Governor in Council (i.e. the Cabinet).

There is some confusion about who actually appoints judges to the Supreme Court of Canada. While formally, it is the entire Cabinet, Hogg suggests that the Prime Minister is responsible for appointing the Chief Justice of the Supreme Court and will be involved in the selection of “puisne” (i.e. sitting judges) of the Court along with the Minister of Justice. 1 As a matter of law, at least three sitting judges must come from Quebec (section 6 of the Supreme Court Act) and as a matter of convention, three judges originate from Ontario, two from Western Canada and one from the four Atlantic provinces. The only explicit qualification for membership on the Court is that a candidate either must currently sit as a judge of a superior court of a province or have been a member of a law society for at least ten years (section 5).

As part of its deliberations regarding the appointment process in 2004, the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness (“Justice Committee” heard testimony from Irwin Cotler, the Minister of Justice and Attorney General of Canada, on March 30, 2004 during which he described the current appointment process. 2 The Minister notes in his address that the process he describes can not lay claim to be followed in every past appointment. However, he has established a more formal “protocol” based on past practice. He also committed to following the protocol in the future while he is Minister of Justice until there is a substantive change to the process.

Mr. Cotler describes two parts to this process including the identification of outstanding candidates and the assessment of identified candidates. The Minister of Justice undertakes both parts of this process by a series of consultations involving the following people:

Chief Justice of Canada or other sitting members (to discuss needs of the Court)
Attorney(s) General of province or region
Chief Justice(s) of province or region and Chief Justice of trial level superior court
President of Canadian Bar Association and local CBA representatives of province or region
President(s) of law society of province or region.

The Minister’s consultations involve a considerable degree of back and forth discussions. He will also take into account any submissions made by individuals or groups on their own initiative.

In the second phase of the process, leading candidates are assessed for merit by assessing their professional capacity, personal characteristics and diversity:

Professional capacity: superior intellectual ability, analytical and writing skills, proven ability to listen to all sides of an issue and maintain an open mind, decisiveness and soundness of judgement, capacity to manage heavy workload in a collaborative environment, capacity to manage stress and isolation of judicial role, strong cooperative skills, awareness of social context, bilingual capacity, specific expertise required for the Court

Personal characteristics: impeccable personal and professional ethics, honesty, integrity and forthrightness, respect and regard for others, patience, courtesy, tact, humility, impartiality, tolerance, responsibility, common sense, punctuality and reliability

Diversity: “the extent to which the court’s composition adequately reflects the diversity of Canadian society”

The Department of Justice also considers “jurisprudential profiles” regarding volume of decisions, areas of expertise, outcome of appeals, and the degree to which decisions have been followed by lower courts.

During this process the Minister will consult with the Prime Minister who may undertake his own consultations. 3 After this process, the Minister of Justice will recommend a candidate to the Prime Minister after which “preferred candidate is then chosen”. The Prime Minister recommends the choice to Cabinet which then essentially endorses the recommendation. The appointment is formalized by an order of the Governor General. In his submission to the Justice Committee, Mr. Cotler indicates that the Prime Minister has “final responsibility” for the appointment.

The strengths of this process are identified primarily through the fact that there is considerable consensus among experts that appointments to the Court at least over the last thirty years have been considered to be excellent. Expert witnesses to the Justice Committee that recently examined the process have noted that the Supreme Court of Canada, as an institution, is highly regarded in the juridical world community and its judgements are adopted by foreign courts, notably by the courts of Israel and South Africa.

The obvious weakness of this system may be its lack of transparency and consequently the fact that the formal procedure is unclear even among members of the legal community. Such uncertainty endangers legitimacy and breeds a lack of confidence in the process, if not among “experts” then at least in the general public, a danger to be avoided if the institution of the Supreme Court of Canada is to maintain its high regard in Canada and elsewhere. Critics argue that Canada is the only western liberal democracy with such a closed and discretionary system for high court appointments.

In addition, some experts argue that, if not true in fact, there is at least the problem of a perception of danger that the Court appointments could be politicized when the Prime Minister has ultimate authority to determine appointments with little in the way of formal constraints upon his choice. 4 While no one has criticized past appointments as being purely partisan or political, at least at the Supreme Court of Canada level, with no formal constraints on the process, there is a legitimate concern that judicial independence might be at risk if the Prime Minister appoints only those he sees as friendly to his government and its policy.

To the best of our knowledge, though no known politician or expert has argued that certain appointments to the Supreme Court have been politically motivated, the same is not true of appointments in lower courts including Courts of Appeal. As you may recall, in September of 2003, Stephen Harper alleged that the Liberal government and the courts had conspired via appointments of judges friendly to rendering judgements to laws prohibiting same-sex marriages as unconstitutional so that the Liberal government could sidestep the political controversy by permitting courts to decide the question:

“I think it’s a typical hidden agenda of the Liberal party … They had the courts do it for them, they put the judges in they wanted, then they failed to appeal C failed to fight the case in court … I think the federal government deliberately lost this case in court and got the change to the law done through the back door.” 5

This allegation was roundly criticized in the media for various reasons including the fact that Roy McMurtry, the Chief Justice of the Ontario Court of Appeal and one of three judges who ruled unanimously in striking down the common law restriction of marriage to heterosexual couples in Halpern v. Canada (Attorney General) 6, was appointed by Brian Mulroney’s Progressive Conservative Party of Canada and had previously been an Attorney General of Ontario in Bill Davis Conservative government.

Harper continues to make comments that could be construed as challenging the notion of judicial independence, a principle that is discussed later in this paper. In particular, Mr. Harper has stated that he believes that the Supreme Court of Canada would refuse to interfere with federal legislation prohibiting same-sex marriages:

“I am confident that if the Parliament expresses its views clearly on this, which is something that Parliament refused to do under the Liberals, then I am quite certain that the Supreme Court will understand that and respect Parliament’s competency to deal with such a matter,”. Mr. Harper made this statement after being asked whether he would use the notwithstanding clause to override a Court decision endorsing same-sex marriages. 7

While Mr. Harper might simply be playing politics with the debate about appointments, his comments demonstrate that, however much one might believe that past Court appointments were non-politicized, there are important political players who might be more motivated to take into account purely political concerns when appointing judges to the Court. The primary point to underscore here is that, under our current system of appointments, there are no formal constraints or procedural safeguards to prevent this from happening. The wisdom of relying on the good faith of future Prime Ministers to honour this approach is questionable if one is concerned about ensuring judicial independence.

In addition, it is also important to note that a major impetus of the move to reform the Court appointment process has emanated from a group of academics and political commentators who have been very critical of what they call “judicial activism” by the Court. 8 These critics argue that the Supreme Court has, without justification or authority, usurped the supremacy of parliaments (both federal and provincial) by invalidating legislation mostly through the Court’s interpretation of the Charter of Rights and Freedoms and/or imposed a theory of constitutional review that does not give due credence to the original intent of framers of the Charter. As a means of redressing this inappropriate judicial activism and ensuring judicial accountability, these critics seek to reform the Court’s appointment process to permit a greater degree of Parliamentary scrutiny over the membership of the Court. For reasons articulated in greater degree elsewhere, the B.C. Civil Liberties Association should oppose their concerns about judicial activism and should be wary of their motives for and substance of their recommendations for reform. In brief, their criticisms ought to be rejected as contrary to the fundamental principles of the rule of law and judicial independence; they simply do not adequately reflect the complexity of the institutions and structure of constitutional democracy that now exists in Canada. 9

It is fair to suggest that many within the Conservative Party of Canada, if not Stephen Harper personally, share these same, invalid concerns with respect to judicial activism. It is reasonable to be concerned that such concerns may hold considerable authority in Ottawa if not in 2004, then at some point in the not too distant future.

It should also be noted as will be discussed later in this paper, these concerns regarding politicization do not preclude a system in which the Prime Minister has significant influence with respect to the choice of appointments. The purpose of this discussion is to point out that the current system is vulnerable to outright politicization with no constraints to guard against such manipulation. For those reasons, there are strong reasons to support reform to the current process to ensure the integrity of the Court by safeguarding the principles of judicial independence and impartiality as further discussed below.

III. Other Processes

As noted above, Canada is somewhat unique in western liberal democracies for locating the authority to appoint members to the highest court in the leader of government without any checks or balances. While there are many other countries with processes different than Canada, many of which utilize some sort of judicial appointments commission or committee, this discussion will focus on the process for appointing justices to the United States Supreme Court because it is both revered and reviled as a model to emulate.

Briefly, U.S. Supreme Court justices are appointed according to the American constitution in a two-step process: nomination by the president and then confirmation by the senate. The specific mechanics of this process were not spelled out in the constitution, so there is debate about different meanings for “nomination” and “confirmation”. As a matter of convention, the Senate Judiciary Committee researches the candidates’ qualifications and then makes a recommendation to the full senate. The full senate does not have to follow this recommendation; it votes and if 51 of the 100 senators vote in favor, then the person is confirmed. One aspect that has evolved over the years is the development of the tradition of hearings held by the Senate Judiciary Committee at which various people testify. Previously just lawyers who knew the nominee professionally testified but witnesses now include the nominee and representatives of interest groups representing different points of view, such as civil rights groups. Several nominations, especially Robert Bork in 1987 and Clarence Thomas in 1991, have been highly publicized (via TV, newspapers, etc.) with interest groups and individuals lobbying their senators to endorse or reject nominees. Voter interest in appointments has increased significantly since 1913 when senators were first elected by popular voting.

The fact that the American nomination process has become so politicized is both an advantage and disadvantage. To the extent that a broad spectrum of Americans are interested in and perhaps engaged in lobbying for a particular nominee, this process may be construed as healthy by some. Conversely, whether as a cause or effect of such intense public interest, nominations by the President often have the appearance of significantly more politicization in the sense that nominees are understood to have clearly held views about the many moral issues that the court will confront in its deliberations whether that be abortion, gay rights or gun control. Presidents thus nominate individuals who they believe will best mirror their own politics. Some might argue that the spoils of victory should permit the Executive branch to shape public policy through the choice of preferred judges who may provide favourable decisions to preferred government policy. From a judicial independence and impartiality point of view in which it is important to separate the judicial branch from the legislative and executive branches of government, as discussed later in this brief, this reality is perceived as a major disadvantage of the American system. It is noteworthy that no other country in the world has adopted the American model, especially with respect to public confirmation hearings. As the American system is enshrined in their constitution, it is very difficult, if not impossible, to change though arguably hearings per se are not a constitutional requirement.

IV. Principles

Any process for judicial appointments to the Supreme Court of Canada must be guided by an overarching set of principles. Ideally, such principles should be enshrined in law in order to properly guide the appointment process. These principles would provide the framework for three key elements of the process: who makes appointments, how they are made and on what basis they are made.

The following principles will be essential to the appointment process and should act as the foundations upon which one answers the questions of who, how and what.

Merit
Democratic Legitimacy
Judicial Independence and Impartiality

1. Appointments must be based on merit.

Merit must be the overriding reason for appointing a particular individual to the Supreme Court of Canada. Thus, the appointment process must be one that is designed to best assess the merit of potential candidates both in terms of who participates in this process and what considerations are taken into account in the assessment. Of course there will be a variety of factors to consider in making appointments based on merit. The factors the Minister of Justice weighs in considering the merit of a potential candidate – professional capacity, personal characteristics and diversity – are a strong starting point as a check list for a thorough assessment. While there must be a degree of flexibility in designing a process, it would be important to enshrine the principle of merit into a legal requirement so that those responsible for choosing or recommending appropriate candidates for the Court must select and justify their decisions according to merit.

2. Appointments to the Court must be made in such a way as to promote the democratic legitimacy of the Court.

An appointment process must be perceived to be legitimate by all Canadians and promote the legitimacy of the Court. To achieve democratic legitimacy, the process must engender public confidence that appointments will be made according to merit and not for partisan political purposes. One of the problems with the current process is that there is the potential, if not real evidence of past practice, for the Prime Minister to make appointments for partisan political reasons.

For the Supreme Court to maintain its legitimacy, there must be general confidence in the appointment process. While there will naturally be criticism of any particular Court decision, at time strong criticism, the source for this criticism should not emanate from an unfair, opaque, appointment process that is potentially subject to partisanship. Thus, this process must hold the general confidence of the following segments of the population:

The Judiciary: To attract the most qualified jurists, the process must be one that the judiciary in general holds in high esteem. Members of the Court must believe that they merit their appointments and so must their colleagues at other levels of court whose decisions will be subject to review by the Supreme Court and who must follow Supreme Court precedents. Those who aspire to membership in the Court must be willing to be subject to the review process for candidates and thus to attract top candidates, the process must be transparent and fair.

This point is important in Canada where the candidate pool for the Court, especially from smaller regions like Atlantic Canada, is going to be relatively small. We want to be careful not to discourage the best candidates by subjecting them to an appointment process that may be overly politicized or potentially risky to their current careers. It is important to remember that the best candidates will have other career options sometimes more attractive than working in Ottawa.

Legal Community: As fellow guardians of the rule of law and as advocates before the Court, lawyers and legal and other academics must also believe that appointments are of the highest quality.

Parliamentarians: The Supreme Court is the ultimate arbiter of legislation passed by elected representatives. Thus, Parliamentarians (both federal and provincial) must also firmly believe that those who will judge their laws merit membership in the Court because of outstanding juristic qualities rather than partisan affiliations or political viewpoints. Provincial input is critical given that the Court rules on federalism disputes between the federal government and provinces.

General Public: The general public must also believe that appointments are made based on merit and not simply to stack the Court to render decisions favourable to a ruling government. To achieve this, some experts have suggested that any system to choose judges for the Supreme Court of Canada should include representatives of the “general public”. While we very much agree that the process must invoke confidence of the general public, the BCCLA believes that this can be achieved without the inclusion of laypersons in the selection process. It is not clear how one would choose a layperson representative of the “general public”. Furthermore, without some special expertise relevant to the task of selecting the best candidates, a layperson would contribute very little to the process. Instead, we suggest that elected representatives are able to represent the “general public” as they do with other matters of public concern.

One of the principal mechanisms by which democratic legitimacy can be achieved is by ensuring that the process by which members of the Court are chosen is itself legitimate. With increased focus on the current process, the relatively secretive process is an easy target for criticism of political manipulation. By making the process clear to all Canadians, these suspicions, whether valid or unfounded, can not be substantiated.

Furthermore, by making the process more inclusive, various interests will be able to influence the outcome adding further legitimacy to the process.

A couple of further comments regarding transparency are in order. First, greater transparency will have the additional value of providing a valuable means to educate the general public about the Court, its mandate, its operations and about the people on the Court. Whatever reforms are made to the appointment process, it would be an important advance to codify the process in legislation such as the Supreme Court Act.

Second, a note of caution is important. The nature of democratic legitimacy is by necessity going to be different with respect to the appointment of judges to the Supreme Court of Canada than it would be for the election of elected representatives. They are fundamentally different positions with different mandates and responsibilities and so the standards and process for attaining office and accountability for elected representatives will not be applicable to the standards for the appointment of judges. Whereas complete transparency with respect to the election of legislative representatives is paramount to the integrity of that branch of a democratic system, a degree of significant confidentiality in the assessment of candidates will likewise be paramount to the integrity of appointments of the judiciary. Our third principle below provides further explanation of why something less than full transparency is appropriate for Court appointments.

3. The process must be one that preserves the integrity of the Court while promoting judicial independence and impartiality.

Judicial independence and impartiality are fundamental conditions for a true democracy in which the rule of law is an underlying principle. As Chief Justice McLachlin stated in her address sponsored by the B.C. Civil Liberties Association:

“… judges are required by the most fundamental principles of our legal tradition to remain independent and impartial. Judges are not beholden to any particular interest or political party, much less to the prime minister who may have appointed them. … The suggestion that judges ever disregard their obligation to rule in accordance with the law, that they decide on the basis of their subjective preference, undermines this confidence, and should not be made lightly. The suggestion that judges are pawns in elaborate political games or serve the aims of one side or the other of the political spectrum is equally destructive, and equally false.” 10

Thus, any process for appointments to the Court must ensure that the conditions of judicial independence and impartiality are sustained and protected.

But what do the concepts of independence and impartiality represent and how are they relevant in concrete terms to the Court’s appointment process?

By way of background, two decisions of the Supreme Court of Canada provide guidance. In Valente, 11 the Court states that the purpose of judicial independence is, among other things, to ensure that courts can fulfil their fundamental responsibility as protectors “of the Constitution and the fundamental values embodied in it — rule of law, fundamental justice, equality, preservation of the democratic process, to name perhaps the most important.” [at para.14] The Court distinguishes impartiality from independence:

“A judge may be impartial in the sense that he has no preconceived ideas or bias, actual or perceived, without necessarily being independent. … Although there is obviously a close relationship between independence and impartiality, they are nevertheless separate and distinct values or requirements. Impartiality refers to a state of mind or attitude of the tribunal in relation to the issues and the parties in a particular case. The word “impartial” as Howland C.J.O. noted, connotes absence of bias, actual or perceived. The word “independent” in s. 11(d) reflects or embodies the traditional constitutional value of judicial independence. As such, it connotes not merely a state of mind or attitude in the actual exercise of judicial functions, but a status or relationship to others, particularly to the executive branch of government, that rests on objective conditions or guarantees.

16 Fawcett, in The Application of the European Convention on Human Rights (1969), p. 156, commenting on the requirement of an “independent and impartial tribunal established by law” in article 6 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, puts the distinction between independence and impartiality as follows:
‘The often fine distinction between independence and impartiality turns mainly, it seems, on that between the status of the tribunal determinable largely by objective tests and the subjective attitudes of its members, lay or legal. Independence is primarily freedom from control by, or subordination to, the executive power in the State; impartiality is rather absence in the members of the tribunal of personal interest in the issues to be determined by it, or some form of prejudice.’

17 The scope of the necessary status or relationship of independence has been variously defined. For example, Shetreet, in Judges on Trial: A Study of the Appointment and Accountability of the English Judiciary (1976), emphasizes in the following passage at pp. 17-18 the importance of freedom from the influence of certain powerful non-governmental interests:
‘Independence of the judiciary has normally been thought of as freedom from interference by the Executive or Legislature in the exercise of the judicial fonction. This, for example, was the conception expressed by the International Congress of Jurists at New Delhi in 1959 (The Rule of Law in a Free Society, 11 (Report of the International Congress of Jurists, New Delhi, 1959, prepared by N. S. Marsh)) and arises from the fact that historically the independence of the judiciary was endangered by parliaments and monarchs. In modern times, with the steady growth of the corporate giants, it is of utmost importance that the independence of the judiciary from business or corporate interests should also be secured (Accord G. Borrie, Judicial Conflicts of Interest in Britain, 18 Am. J. Comp. L. 697 (1970)). In short, independence of the judiciary implies not only that a judge should be free from governmental and political pressure and political entanglements but also that he should be removed from financial or business entanglements likely to affect, or rather to seem to affect, him in the exercise of his judicial functions.'” [at paras. 14-17]

In Re Remuneration of Judges (1997), 12 the Court reiterated Valente’s three core and necessary conditions required for judicial independence: security of tenure (removal only for cause after a judicial inquiry with an opportunity to be heard), financial security (freedom from political interference through economic interference by legislature or executive) and institutional independence (the freedom of judges and courts to administer their judicial responsibilities without interference from the executive or legislative branches of government or political matters).

For the Court in Re Remuneration of Judges, the separation of powers between the legislative, executive and judicial branches of government that exists in the Constitution of Canada is critical for ensuring judicial independence and insulating the judiciary from political influence:

“What is at issue here is the character of the relationships between the legislature and the executive on the one hand, and the judiciary on the other. These relationships should be depoliticized. When I say that those relationships are depoliticized, I do not mean to deny that they are political in the sense that court decisions (both constitutional and non-constitutional) often have political implications, and that the statutes which courts adjudicate upon emerge from the political process. What I mean instead is the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely, that members of the judiciary should exercise reserve in speaking out publicly on issues of general public policy that are or have the potential to come before the courts, that are the subject of political debate, and which do not relate to the proper administration of justice.” [at para.140, Court’s emphasis]

Thus, these principles both provide fodder for a critique of the current system of Court appointments – the fear that the Prime Minister could use his almost complete discretionary authority for purely partisan and/or political ends – and for guidance for the creation of a new appointment process. In seeking to address at least the appearance of a potential problem with the current system, it will be equally important to create a process that respects the principle of “depoliticization”.

V. Options for Reform

There are of course endless possibilities for reform to the Court’s current appointment process. However, I will seek to limit the options to ones that have been proposed by credible experts or interested persons who have some influence in the efforts to reform the current process. In constructing a model, it will again be important to address the three issues about who will participate in the process, how will they go about their responsibilities and what will be the basis or criteria by which they make decisions. These issues will be discussed in each option. It should also be noted that there will be a variety of combinations and permutations within any particular option when mixing together these three ingredients.

1). Enhanced Status Quo

Many experts suggest that the results of the current process demonstrate its strengths: appointments to the Supreme Court of Canada have been consistently top quality. Why mess with success? To address problems of transparency, the “protocol” described by Irwin Cotler above could be codified as part of the Supreme Court Act. This would shine some light on the current process making it more transparent and thus legitimate.

However, both the Prime Minister of Canada and the Minister of Justice have indicated an intention to amend the current system to permit greater Parliamentary participation in the appointment process. Whether or not the PM or Minister will have the opportunity to honour this promise or will in fact honour it if they have the power to do so, the principle of democratic legitimacy would support greater Parliamentary (and provincial) participation. In his address to the Justice Committee, Minister Cotler suggested that there are three options open to the Committee for recommendation, the first of which would permit parliamentary committee review of a nomination proposed by the Minister of Justice by questioning the Minister. Thus, the Minister would appear before a committee to essentially defend the decision to nominate a particular person. The Minister is not clear whether the committee or any other body would have to ratify the decision, but given this option is essentially the status quo with some enhancement, we will assume that there is no power of ratification, simply the opportunity to explain the nomination and answer questions. Thus, the Prime Minister (via the Cabinet) would retain authority to make the appointment.

If one believes that the current process should be continued, this option is a preferred option. It will enhance the perceived legitimacy of the process both by making it more transparent and increasing the participation of Parliamentarians.

However, this option can still be criticized as at least retaining one of the primary weaknesses of the current system in that it locates all the power to influence the Court through the appointment process by placing appointments ultimately in the hands of one person C the Prime Minister. The problem of politicization – real or perceived – is not addressed.

2.) Judicial Appointments Committee or Commission

In this model, also identified by Mr. Cotler, a judicial appointments committee or commission would be assembled each time a new member to the Court needs to be appointed. Ideally, this committee would include all the groups listed in section IV who must maintain confidence in the appointments: the judiciary itself, parliamentarians, the legal community and the general public.

Though particular individuals and groups disagree with respect to composition and mandate, there is consistency among the proposals made to the Justice Committee for the creation of an advisory committee to undertake the substantive work of deciding who would be the best candidate for appointment to the Court.

For example, Professors Ziegel and Russell both favour a judicial selection committee that would include federal parliamentarians, eminent members of the legal community and the judiciary, provincial and territorial representation. The committee would nominate someone after public hearings in which candidates could be queried about their backgrounds and perspectives. The Prime Minister would then be responsible for appointing based on the committee’s recommendations. 13

Drawing on the current process for the appointment of superior court and Court of Appeal justices under the Judges Act 14, the Canadian Bar Association’s (CBA) brief recommends that a Special Advisory Committee be created when an appointment needs to be made. 15 This proposed committee would include representation from the federal Minister of Justice, the Attorney(s) General, Chief Justice(s) and law society(ies) of the province (or region) from which the appointment is to be selected, national President of the CBA, and four Parliamentarians elected from the Justice Committee. This committee would then make recommendations for an appointment to the Prime Minister. The CBA explicitly rejects the notion that candidates can be subject to public or private interviews by a selection committee and suggests that such hearings would undermine judicial independence.

Professor McCormick, a Professor of Political Science at the University of Lethbridge recommended to the Justice Committee that a federal judicial commission be created comprising of five judges as selected by the Canadian Judicial Council, five premiers selected by the premiers themselves and five members of the Justice Committee selected to represent major political parties in Parliament. Professor Morton endorsed Professor McCormick’s model. This appointment committee would recommend five individuals from which the Prime Minister would pick one. Then the appointment designate would be required to appear before the Justice Committee in televised hearings to answer any and all questions posed by it.

A fourth option as outlined by the Justice Committee in its recently released report 16 would create an advisory committee composed of one representative of each political party with official standing in the House of Commons, representatives from the provinces, members of the judiciary, legal profession and lay members. The advisory committee would compile a comprehensive list of potential candidates that it would then work to reduce to three to five candidates based on consultations and assessment currently described by the Minister of Justice, including consultation with the Chief Justice of Canada to understand the needs of the Court. The Advisory Committee would not interview candidates and its work would be confidential. The advisory committee would make its recommendations to the Minister of Justice. The final decision would be left to the Minister and the Prime Minister. The choice would be formalized through an Order in Council appointment. The chair of the Advisory Committee and/or the Minister of Justice would appear before the Justice Committee to explain the process and justify the choice. Candidates would not be subject to American style confirmation hearings. As an interim process, a majority of the Justice Committee recommended that the Minister of Justice appear before the Committee to report on the process and the reasons for appointing particular people. The BCCLA is listed as having provided a brief. The only submission the BCCLA made was a letter urging the Prime Minister, the Minister of Justice and the Justice Committee to take its time and properly consult in creating a new process. This is a message also delivered by the Chief Justice of Canada and various witnesses before the Committee.

Common among all of these proposals is that a select group of “experts” would convene to undertake the task of determining, at a minimum, who are the leading candidates or, at its most expansive, who should be chosen as the best candidate. They differ in who should participate on such a committee and, importantly, on whether candidates should be subject to a public hearing.

How does one choose individuals to sit on an advisory committee? Whatever the selection process for members of an advisory committee, this process itself must ensure that members are not picked based on partisan affiliations (other than Parliamentarians) or to pursue partisan agendas. With this caveat in mind, we would support a process in which a variety of expert groups that are non-partisan should be left to choose the best representative to participate on a committee. For example, with respect to the judiciary, the Chief Justice of the provincial Court of Appeal and superior court could directly participate or delegate another judge to represent them. With respect to the legal community, one member from the Canadian Bar Association and local law society(ies) could name representatives. Parliamentarians would be represented by individuals of both the government and official opposition from the federal level and by government representatives at the provincial level.

VI. The Mandate of an Advisory Committee and the Role of the Prime Minister

Should an advisory committee merely provide a short list of top candidates from which the Prime Minister or Executive could choose or should the committee pick the candidate? This question involves fairly complex considerations about democracy and the nature of judicial review at the level of the Supreme Court of Canada.

In considering this question, it is important to acknowledge two important facts. First, the decisions of the Supreme Court of Canada, prior to the Charter but even more so after its creation, have an important influence on public policy in Canada. Given the Court’s significant public policy role, why shouldn’t the government of the day – which is elected to govern based on certain public policy commitments -have considerable influence on who is appointed to the Court?

Second, it is important to acknowledge that judges are unique individuals with unique perspectives about a judge’s role and differing theories about judicial interpretation and judicial review. Some judges may be seen as deferential to government, while others more interventionist. Thus, it is possible to have several top candidates who each are highly meritorious for appointment based on the criteria that we have discussed earlier in this paper yet will each bring a different approach to their judgements. Is it appropriate to delegate the choice among equal but different candidates to a committee of un-elected members? On what basis will they make distinctions between candidates of equal but different merit? If the difference between candidates is one of “judicial perspective”, isn’t it more appropriate for elected, accountable officials to make this choice than appointed members?

The concern about both these propositions is that it takes us back to the arguments we introduced earlier in this paper about politicization of the appointment process and judiciary. There is a real tension between being careful about not allowing a Prime Minister complete discretion to choose whomever they wish without any constraints or safeguards for fear of outright politicization of the process, on the one hand and acknowledging on the other that (a) there may be a legitimate role for the Prime Minister in choosing an appointment given the policy role of the Court and (b) there has to be some basis -and some legitimate authority – for distinguishing between otherwise equally meritorious candidates.

The resolution to this tension could be found in distinguishing between the responsibility of a true advisory committee and the ultimate decision making responsibility for the Prime Minister, or Executive, with respect to an appointment. The advisory committee’s role would thus be to determine the best leading candidates based on merit and to advise the Prime Minister about each candidate’s “judicial perspective” (i.e. set of values regarding judicial interpretation). The advisory committee would presumably eliminate those candidates who simply see little or no role for judicial review – the worry expressed earlier in this paper regarding those Court appointment reformists who have little regard for the judicial branch of government. Yet, they would presumably include candidates who, as long as they meet the other merit criteria, are either “activist” or “deferential”.

The advisory committee would work on a consensus based model. All members of the committee would have to agree on the recommendations for a short list submitted to the Prime Minister. Because the advisory committee’s mandate will be to provide a short list of five or so top candidates all of whom meet the minimum but high standards of merit – not to recommend only one individual – consensus should not be difficult to achieve. The advantage of a consensus model is that it encourages decision makers to take seriously other interests besides their own, including partisan interests if they have any, because they must agree to all candidates on the short list. This is a further way the advisory committee will not become a partisan tool thus promoting judicial independence and impartiality.

From this short list, the Prime Minister would then choose the appointment according to his or her own views about the kind of judicial perspective they wish to see added to the Court.

The advisory committee should also include a chairperson who will have organizational support to act as a secretariat to coordinate the operation of the committee. We believe that the chairperson should be the Clerk of the Privy Council. The Clerk and his staff’s role is to provide non-partisan advice to the Prime Minister and Cabinet. The Clerk of the Privy Council is the head of the public service and responsible for smooth transitions between different governments. 17

VII. Public Hearings

In considering more carefully the idea of public hearings, it is not apparent what such hearings would accomplish. An axiom of judicial decision making is that a judge lets a decision she has written speak for itself. Thus, it is not appropriate for parliamentarians to ask potential candidates or a nominee to comment on a particular case. Nor would a nominee answer such questions. Again, a nominee’s theory of judicial review should be evident by their past judgements. The only exception would be for candidates who come directly from private practice (Justices Binnie and Sopinka for example) or the academic world (Justice Bastarache), but in each of these cases, such candidates will have likely written or given public speeches on topics of interest to a selection committee. Finally, it will not be appropriate for an MP to ask a nominee’s personal values with respect to controversial political issues that may come before a court such as abortion or the death penalty nor would a nominee answer such questions. Though a public hearing involving the Minister of Justice and possibly the chair of a selection committee would not create the problems as outlined above, again it is not clear what is to be gained by this type of hearing in substantive terms since they will not ask such questions of candidates. In sum, there is little to be gained in substantive terms in determining the best candidate to appoint to the Court through the use of public hearings. At best, they provide a modicum of an appearance of “accountability” with little if any substantive assistance to choosing the best candidate. At worst they will provide a very public stage for politicians to play politics with the appointment process, thus undermining judicial independence and impartiality.

VIII. Liberal and Conservative Preferences

In May 17, 2004 editions of the Vancouver Sun and National Post, a spokesperson for Prime Minster Martin has indicated that the Justice Committee’s recommendations do not go far enough to fulfill the PM’s promise to allow MPs greater ability to review and scrutinize appointments. The Chair of the Justice Committee, Martin Lee suggested that his Committee colleagues were “so cautious that they low-balled a potential role for Parliament.” Mr. Lee is now suggesting that Parliamentarians could interview nominees in closed hearings with protocols to avoid inappropriate questioning. The Prime Minister’s spokesperson indicated that the new process would be place by June to allow for it to be used for the two new pending appointments to the Court, contrary to the advice of many including the BCCLA.

Conservative Party of Canada members of the Justice Committee wrote a dissenting report implicitly recommending American style ratification hearings. Justice critic Vic Toews has suggested that a Conservative government will create an all-party committee to review nominations including public hearings though the committee could not veto a Prime Minister’s choice.

As noted previously, the BCCLA has sent the Prime Minister and all party leaders a letter indicating our opposition to open confirmation hearings.

IX. Conclusion

There are good reasons in principle to reform the current process for appointments to the Supreme Court of Canada. The current process lacks adequate transparency, legitimacy and may threaten judicial independence and impartiality because it could be subject to purely political manipulation. Any reform must be based on three principles: appointment by merit, democratic legitimacy and judicial independence/impartiality. Public hearings involving the questioning of nominees to the Court may threaten judicial independence/impartiality and thus should not be included in an appointment process. Instead, an advisory or selection committee should assess the merits of leading candidates and recommend a short list of candidates to the Prime Minister who would make a final choice.

(1) Hogg, Constitutional Law of Canada, 4th ed. (looseleaf) (Toronto: Carswell, 1997) at 8-6, 8-7.

(2) For a weblink to the Minister=s submission, go to: http://www.parl.gc.ca/InfoCom/PubDocument.asp?DocumentID=1276991&Language=E

(3) Telephone correspondence with Marc Giroux, Judicial Affairs Advisor to the Minister of Justice, April 28, 2004.

(4) In particular, see the testimony of Professor Jacob Ziegel (Faculty of Law, University of Toronto) and Professor Peter Russell (Department of Political Science, University of Toronto) to the Justice Committee, March 23, 2004, online: http://www.parl.gc.ca/InfoCom/PubDocument.asp?DocumentID=1258204&Language=E

(5) News Hound, September 7, 2003 as cited in www.tranquileye.com/stockwell/harper.php

(6) Online: http://www.canlii.org/on/cas/onca/2003/2003onca10314.html

(7) As reported in the Globe and Mail, June 3, 2004.

(8) These critics include Professor Ted Morton (Political Science, University of Calgary), Professor Christopher Manfredi (Political Science, McGill University) and Neil Seeman, of the Fraser Institute. Professor Morton testified before the Justice Committee on April 1, 2004. Professor Manfredi testified on March 23, 2004. To access their testimony, visit: http://www.parl.gc.ca/InfoCom/CommitteeMinute.asp?Language=E&Parliament=139&Joint=0&CommitteeID=8795

(9) See M. Mollard, Delivering Democracy C The Challenge of Judicial Accountability (2004) 62 Advocate (B.C.) 337.

(10) B. McLachlin, Democracy, the Rule of Law and Judicial Activism, online:at 20. Given the timing of these comments coming two months or so after Stephen Harper=s comments noted earlier in this paper, one may wonder if the Chief Justice offers her comments as an indirect response to Mr. Harper.

(11) [1985] 2 S.C.R. 673 at para. 14.

(12) [1997] 3 S.C.R. 3

(13) See Professor Ziegel=s and Russell=s testimony before the Justice Committee.

(14) See Part III of the federal Judges Act. Also visit the website of the Office of the Commissioner for Federal Judicial Affairs at:for a complete description of judicial appointments for lower courts.

(15) The CBA brief also has short descriptions of appointment processes in other countries. To view the CBA=s brief, visit:

(16) To obtain a copy, visit: http://www.parl.gc.ca/InfocomDoc/Documents/37/3/parlbus/commbus/house/reports/justrp01/justrp01?e.pdf

(17) For more information about the Office of the Clerk of the Privy Council, visit:

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