The Book

This blog serves to update Craig Forcese and Aaron Freeman, The Laws of Government: The Legal Foundations of Canadian Democracy (2nd Ed., Irwin Law 2010). It is also a depository for comments relating to two public law course taught by Craig Forcese at the University of Ottawa, Faculty of Law: CML 1104 Public Law and Legslation and CML 2212 Administrative Law.

By Craig Forcese

Full Professor
Faculty of Law

Email: cforcese[at]uottawa.ca

Twitter: @cforcese

 

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Monday
Dec012014

Supreme Court Appointments: Two Steps Backwards, None Forward

Update: Laws of Government (LofG), Chapter 4, judicial appointments, pp.263 et seq.

I will begin with the usual caveats:  I don't know Madame Justice Côté.  I have no reason to doubt the endorsement her Supreme Court appointment has earned from the legal profession's establishment. 

But just like good can occasionally come of any bad process, that goodness is not reason to go silent on that process.  This appointment is the first to follow the disastrous events known as the "Nadon affair".  That debacle has many villains.  None of those villains was Justice Nadon himself.  But one of them was the process followed: a deck loaded with legally doubtful options that was considered by a deficient parliamentary process, and produced fall-out of all sorts when it all collapsed.  That fall-out now includes abandonment of a flawed appointment system in favour of an even worse one: We have now retreated from any kind of openness in Supreme Court appointments. 

I haven't seem much blow-by-blow reporting on what exactly took place, but I take it the approach employed was the one used for all appointments prior to that of Justices Charron and Abella.  This "traditional" approach was described by then-Justice Minister Irwin Cotler and described in LofG, p.263:

First, the minister identifies potential candidates, either through his or her own devices or via nomination. The minister consults with the chief justice of the Supreme Court, and occasionally that court’s other judges. He or she also singles out key individuals from the province or region associated with the empty spot on the court: at least one senior member of the CBA and law society, and the attorney(s) general and chief justice(s) of the courts of the provinces concerned. Typically, the candidates identified via this processes are current judges of the country’s Courts of Appeal, although they may also be senior members of the bar or academia.

Second, the minister assesses the candidate, according to three broad criteria: professional capacity;personal characteristics; and diversity. The minister’s assessment of professional ability is assisted by “jurisprudential profiles” compiled by the Department of Justice, reviewing the candidate’s judicial writings as assessed by their “precedent-setting value” and the outcome of any appeals of their decisions.

The minister discusses the candidates with the prime minister. A candidate is selected and the prime minister recommends this person to the Cabinet.

The appointment follows.  My colleague Adam Dodek puts it well in some of his writing about the traditional process: “more was known about the process for electing a new Pope than about the process for selecting a new Supreme Court Justice".

This model was abandoned (or at least supplemented) by the Martin government in favour of a parliamentary hearing of sorts, a tradition then maintained and enhanced (albeit modestly and occasionally in the breach) for the first several Harper appointments.  Few observers considered this token hearing perfect.  But it did create a form of transparency and public engagement on appointments.  More than that, it was a base on which to build.

No more. And so, I cite another passage from LofG, p.269:

...the increased power of the judiciary under the Charter requires an urgent rethink of the appointments process. In this respect, we are discomforted by a system that depends exclusively on the good faith of the executive branch in selecting meritorious candidates. ...[W]e believe that if Canada has been blessed with excellent Supreme Court justices, this is the fortunate byproduct of an honourable, and once widely shared, political culture opposed to politicizing Court appointments. It is not the result of robust checks and balances in the appointments process minimizing the likelihood of such politicization. We fear that this shared political culture is now waning. Accordingly, preserving the calibre of an independent judiciary — and ensuring that it remains (or becomes, in the view of critics) depoliticized — will require a rethinking of our antiquated appointment process.

Nothing that has happened since my co-author and I wrote that passage in 2005 changes my mind.  Indeed, the gamesmanship of the Nadon affair seems to affirm it.  So badly botched was that process that the return to the insularity of the traditional process seems to have relieved the profession.  (I am somewhat cynical about this response, since the profession is now restored to an especially privileged, backroom position in opining on candidates.) 

It was good politics to made the latest appointment a moderate choice.  But politics is capricious and whatever check it places on executive excess cannot be guaranteed to last.  Any process that cannot restrain politics in the interest of the integrity of the justice system deserves condemnation, not a sigh of relief.

We have more checks and balances for lower court judge appointments, albeit ones that have been weakened at the federal level under the current government.  It is well past time to legislate an effective, meaningful appointment process, starting with Supreme Court appointments.  (And no, I do not believe that anything in the Senate reference or the Supreme Court's Nadon decision would preclude careful legislative rules.)

I have my favourite alternative appointment models, as set out in LofG.  Others, have their's.  All are better than the new status quo.