This week Prime Minister Trudeau announced that, henceforth, the federal government would be following a new process for appointing new justices to the highest court. In article published in The Globe and Mail on August 2, 2016, “Why Canada has a new way to choose Supreme Court judges”, the Prime Minister outlined the basic elements of the reform to the naming of Supreme Court justices. They can be summarized as follows:
- Any lawyer or judge meeting the criteria required of a Supreme Court justice can apply through the Office of the Commissioner for Federal Judicial Affairs;
- An independent seven member panel will review the applications received and make recommendations to the Prime Minister. Each of the Canadian Judicial Council, the Canadian Bar Association, the Federation of Law Societies, and the Council of Canadian Law Deans will appoint a member to the panel. The other three will be selected by the Minister of Justice from prominent Canadians, at least two of which from outside the legal community. For the first panel, the Right Honourable Kim Campbell has been named by the Minister of Justice and will chair the panel;
- The candidates will have to respond to a questionnaire. One of the criteria that they will have to meet will be that they must be functionally bilingual in both French and English.
- The names of the panelists, the form of questionnaire, “certain answers provided by the Prime Minister’s eventual nominee” will all be made public in an effort to raise the degree of transparency to the process.
- Once a shortlist is developed, the federal Minister of Justice will then consult with the Chief Justice of Canada, the applicable provincial and territorial attorneys-general, members of the House of Commons’ justice and human rights committee, members of the Senate’s legal and constitutional affairs committee and Opposition justice critics.
- Once a nominee has been selected, and with at least one week’s notice to give Members of Parliament time to prepare, the Minister of Justice and the chair of the appointment panel will appear before a special meeting of the House’s justice and human rights committee to explain why the nominee was selected.
- Finally, there will be a special Question and Answer session with the nominee to which will be invited all members of the House and Senate committees, and representatives from all parties with seats in the House. This session will be moderated by a law professor.
Assuming that this process is followed, it will undoubtedly make the method of appointing Supreme Court justices more open and transparent. The Minister of Justice will have to account in a very public manner why she and the Prime Minister made the decision they have. But will this serve Canadians well? Will the Supreme Court be a better institution for it? In my view, the answer has to be “it depends”.
The Supreme Court is a rather mysterious institution to most Canadians. How it arrives at its decisions, the personalities of the nine women and men who comprise its bench, how they come to be named to that court are all matters about which most Canadians remain very much in the dark. So any process that may help to illuminate this incredibly powerful body should be viewed positively.
Where I might have reservations about the wisdom of this approach is that it is dependent on individuals (qualified lawyers and judges) deciding that she or he should apply. The previous model allowed the Prime Minister to reach out to a qualified person who may never have thought to apply and ask her or him to take on this challenging position of a Supreme Court justice.
Having said that, I believe that those reservations can be met. I think that it is incumbent on the Minister of Justice and the Prime Minister to encourage such eminent and qualified persons to apply. I think that Canadian jurists need to change their mindset and instead of waiting passively to be called to the highest duty, to seek it out. In this way, we can still get the high caliber of appointments that Canadian jurists have been accustomed to seeing in their Supreme Court.
I agree with Prime Minister Trudeau. Canadians have been well served by their Supreme Court. And I am very hopeful that, over time, the new process will come to mean that that high level of service will be coupled with a higher level of openness and transparency and maybe even a better public understanding of the Court and its members.