A new way of appointing SCC justices? Process be damned….

150727_vf448_juge-russell-brown_p Reproduced from src.ca

On July 27, 2015, Prime Minister Stephen Harper named Mr. Justice Russell Brown of the Alberta Court of Appeal to the Supreme Court of Canada. Justice Brown has been a judge for two and a half years. I am not going to comment on whether Justice Brown is or is not a good appointment. His track record as a judge is too short to be able to honestly answer that question. Only time will tell. But I am going to comment on the process, or more properly speaking – the lack of process, that the Prime Minister is following.

Starting in 2004, an all-party parliamentary committee reviewed the appointment process of justices to the Supreme Court of Canada. Since the advent of the Charter in 1982, there has been an increasing recognition of the vital role that the Supreme Court now plays in Canadian public policy discourse. A review as to how its members are chosen was therefore merited. All parties agreed that there needed to be greater transparency and input from the various interest-holders, including the provinces and the public at large. The agreed-upon process was initiated for the appointments of Justices Abella and Charron and full implemented for the nomination and eventual appointment of Justice Rothstein.

The latest appointments have clearly shown, however, that all-party agreements as to process do not matter to the current federal administration. I commented on this departure from the agreed-upon process in a post dated December 2, 2014 “The PM names a new Supreme Court justice – but ignores his own protocols”. That appointment was in response to the Court’s decision that the appointment of Justice Nadon was unconstitutional so maybe one could understand why, in the circumstances of that particular appointment, the federal government dispensed with the need for time-consuming procedures. But no such issues were arising before Mr. Justice Brown’s appointment. Instead, it would seem that the Supreme Court is viewed as an obstacle to this administration’s policy objectives and the only imperative is whether the future appointees share its view of the world.

Since Justice Brown’s appointment to the Supreme Court, much has been written about his pre-judicial blog and his comments in support of Conservative policies. I note that many of Mr. Harper’s appointments have failed to produce the conservative results he may have anticipated. Once they have become justices, these appointments have worked to determine what the law is, and have not been trapped by any one ideology or another. So we do not know what Mr. Justice Brown will do with the responsibilities bestowed upon him by virtue of his appointment to the highest court in the land. As I noted above, only time will tell.

But the point that must be taken from all of this is that we have drifted far, far from that more open, more transparent process for Supreme Court justice appointments. Our federal government has thrown such open and transparent process to the wind and has allowed what appears to be political motives to become its sole weathervane.

There were good reasons to review the process for Supreme Court appointments. Those reasons have not weakened over the last decade. Indeed, I would argue that, in light of the intervention of the Court in areas such as anti-prostitution laws, the right to physician-assisted death, the confirmation of pre-existing First Nation governments with vast intact tribal lands, and the expansion of freedom of association in the realm of labour relations, the need for such a process has become heightened, not lessened. What we need are careful legal scholars who can fill in the blanks left in our laws, including our supreme law. We need broad-minded, contemplative, far-sighted women and men who can help give Canada and Canadians the long-term legal structure to address the questions of tomorrow and beyond. A proper process for review and ratification of potential Supreme Court appointments should assist in giving us the members of the Court we need. Ideology, in the absence of any such process, should not be the sole guiding light.

I remain

Constitutionally yours

Arthur Grant

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