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.
I applaud Mr. Grant’s explanation, indeed popularization, of the new mechanism for the selection of Supreme Court justices. This will be of particular interest for those who are interested in Canadian public life and who may have missed the government’s own statement on the subject. It is necessary, however, to distinguish between these actual steps to be followed and the underlying, and generally unexpressed, reasons why such a mechanism is necessary. The cited Globe + Mail articles asks “Why?” but in fact explains “What?”.
The Supreme Court is the highest national institution upholding constitutionalism and the rule of law. Its task is not to provide legal justification for the politically-motivated program of the government of the day. Rather, it applies to the litigious matters presented to it, resulting from that program, criteria of adjudication based on the constitution and the law. The Court must make choices independent of political considerations and even more so, choices segregated from partisanship. This mandate is what gives rise to the “Why?”.
The process of appointments to the Supreme Court must seek to be improved so that new justices are not in fact entrapped in political indebtedness to those who nominate them, nor appear to be providing legal sanction to the government of the day. These goals require the selection of individuals with the best knowledge of the law, the sharpest understanding of the independence of the judiciary and the greatest appreciation of the rule of law.
In light of the controversies of recent years, which seemed to render the boundaries between law and partisanship more permeable, it is these tests that any new method of selecting candidates to the Supreme Court must meet.
Dear Mr. Tardi
Thank you for your comment.
I agree wholeheartedly with your perspective. Of course, these factors should be foremost in the minds of the advisory panel in preparing its shortlist.
I believe that Canada has been well served by our Supreme Court which, at least until recently, has been populated by appointments which were not motivated by political considerations. I think that politics should be kept out of the appointment process or else we will risk having the sorts of shenanigans that the United States have had. Witness the issues faced by President Obama when he tried to fill a vacancy on the United States Supreme Court during the last year of his term.
The new process should not result in politics infecting the appointment process. If anything, it should make that possibility more remote.
Thank you again