Commentators and the legal community have expressed renewed interest in the question of Supreme Court judicial appointments, in the months since the Nadon appointment and the resulting Supreme Court decision.
Freeman and I write on this issue in Ch 4 of Laws of Government (2011), and I have uploaded (with permission from the publisher) the 40 pages or so on the topic. (My comments on the Supreme Court Act and the constitutional amendment formula on p.265 have obviously been overtaken, although perhaps not entirely superseded, by the Nadon decision. But other than that, the issues remain ripe).
The question worth addressing here is whether all the discussion about a renewed, revised, improved, abandoned, tainted, or troubled (depending on the commentator) Supreme Court appointment process is entirely the domain of politics and policy, or whether there are constitutional law issues in play.
By this I do not mean the question of the ultimate appointment authority. The Governor in Council appoints Supreme Court judges, pursuant to the Supreme Court Act. And that aspect of the Supreme Court Act may well (and indeed, is probably given the Nadon decision) subject to one of the amendment formulae in the Constitution Act, 1982. And by constitutional convention, the GG acts on the advice of Cabinet. But having the GG as the final appointer on the recommendation of Cabinet does not address the question: "how are names brought to Cabinet".
For all non-SCC federally-appointed judges, the Governor General (or Governor in Council) also does the appointing, either under s.96 of the Constitution Act, 1867, the Federal Courts Act or the Tax Court Act. Here, however, names are vetted by judicial advisory committees, and have been (with changes) since 1988. These bodies attach recommendations, conveyed to the political executive. I am not aware of any serious complaint that this vetting is unconstitutional (although there have been complaints that this vetting is imperfect).
So all told, prior vetting with recommendation prior to names wending their way to Cabinet is entirely permissible.
The more interesting issue is whether it may also be constitutionally obligatory, because of judicial independence. This is a heretofore unorthodox thought (although, as noted below, not entirely without foundation in the musings of the Supreme Court). On the other hand, it is probably no more (administratively) radical than what the Supreme Court did in the PEI Reference Case, when it crafted the constitutional requirement of independent salary commissions implicated in judicial pay decisions.
It is worth a quick tour of the concept of judicial independence. Here's an extract from Laws of Government (at p. 57):
Judicial independence, says the Supreme Court, is the “lifeblood of constitutionalism in democratic societies.” It is “essential to the achievement and proper functioning of a free, just and democratic society based on the principles of constitutionalism and the rule of law.”
Judicial independence requires “objective conditions that ensure the judiciary’s freedom to act without interference from any other entity.” It ensures that “judges, as the arbiters of disputes, are at complete liberty to decide individual cases on their merits without interference.” By insulating judges from retaliation for their decisions, it guarantees that “the power of the state is exercised in accordance with the rule of law and the provisions of our Constitution. In this capacity, courts act as a shield against unwarranted deprivations by the state of the rights and freedoms of individuals.”
Judicial independence also preserves the separation of powers between the three branches of our democracy by “depoliticizing” the relationship between the judiciary and the other two branches: “the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary, and conversely … 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.”
Judicial independence is entrenched in the Constitution Act, 1867, the Charter, s.11(d) and the "unwritten" constitution. It has a number of recognized aspects -- both of an individual and institutional nature. I reproduce our summary from Laws of Government.
In all its facets of security of tenure, financial independence and administrative independence, it is a doctrine that begins when a judge becomes a judge. So is it nonsense to imagine that the principle spills over to the process by which a judge becomes a judge?
On the contrary, I think judicial independence issues are necessarily engaged by the appointment process. If a lawyer agrees to favour government interests on condition of being appointed a judge, surely that judge's independence is impaired. (For different facts, same dilemma, see Angevine v. Ontario, On SC). There is no magic curtain that separates judge from prior conduct upon appointment.
Indeed, the vetting process employed for non-SCC judges includes consideration of "potential impediments to appointment" that include unethical or criminal past conduct. The existence of these considerations, I would posit, go to whether the person's appointment to the bench would reduce confidence in the administration of justice. As the famous Landreville matter suggests (whatever its merits on the facts), conduct prior to appointment may justify termination of a judge's office, even with robust security of tenure protections.
So point 1: judicial independence questions can arise from events that pre-date appointment, at least where they have the affect of tainting the actual or perceived integrity of the judge.
The next issue is whether an entire system of appointment that is (now) in disrepute raises judicial independence concerns. Or put another way: if a judge is appointed via a political process that creates serious doubts about the merit of judicial appointments, does it transgress constitutional minimal expectations?
Judicial independence, the Supreme Court has admonished repeatedly is necessary to uphold public confidence in the administration of justice. It made this point in the PEI Reference Case (at para. 180), when it made a system of independent judicial salary commissions a constitutional necessity and required that rejections of this body's recommendations be supported by reasons.
And in Ell v. Alberta, it noted (at para. 3): "The principle of judicial independence must be interpreted in light of the public interests it is meant to protect: a strong and independent judiciary capable of upholding the rule of law and our constitutional order, and public confidence in the administration of justice." In that case, the Supreme Court upheld changes to the security of tenure and appointment qualifications of Alberta Justices of the Peace. Along the way, it underscored the importance of the independent judicial council that had recommended these changes:
45 Historically, there was a widespread belief that appointment to office was solely on political grounds. The McRuer Commission (1968) described the situation in Ontario as a "mockery of judicial office [that is] bound to depreciate respect for law and order in the community" (p. 518). It is hoped that patronage in the appointment process has been at least lessened if not eradicated since the time of that report. Unquestionably, the perception that appointment to judicial office is political in nature undermines public confidence in the administration of justice.
46 One step towards ameliorating this perception was to require that candidates for office meet qualifications decided upon by an independent committee that is divorced from political influence. In this appeal the Alberta amendments stipulated that no person may be appointed as a sitting or presiding justice of the peace unless he or she meets qualifications determined by the Judicial Council: s. 2.1(1). The setting of qualifications for office by this independent committee counters the perception of patronage in the appointment process.
47 The delegation of this task to an independent Judicial Council also ensures that appropriate qualifications are set by a body that is familiar with the duties demanded of justices of the peace and the level of education and training required to discharge those duties. ...
Point 2: The perception that appointment to judicial office is political in nature undermines public confidence in the administration of justice, a core precept of constitutionalized judicial independence. The setting of qualifications for office by an independent committee counters this perception.
Based on this language, I believe that the proposition "judicial independence requires a depoliticized, merit based vetting of judicial candidates in order to secure public confidence in the administration of justice" to be an entirely defensible proposition.
So next question, given recent developments, should the application/action for a declaration be brought in Federal Court or Quebec courts?