Canada needs to improve the way it selects Supreme Court justices.
The unexpected announcement that Supreme Court Justice Thomas Cromwell will retire this September throws another important item onto the Liberal government’s already bloated reform agenda: what to do with the Supreme Court appointments process?
Appointments to Canada’s highest court have historically been conducted entirely behind the scenes, with the public’s only knowledge of an appointment coming when it is announced. Given the importance of the court as a governing institution, especially in light of its policy- making power under the Charter of Rights and Freedoms, the opacity of the process is unacceptable in the modern era.
Reforms brought in under prime ministers Paul Martin and Stephen Harper effectively sought to add a post hoc transparency to the selection. In 2004, then- justice minister Irwin Cotler appeared before a committee of parliamentarians to explain his selection criteria. Then, in 2006, the Harper government initiated the practice of having the appointee appear before a committee of MPs to answer questions about themselves, an innovation that was inconsistently applied to subsequent appointments. After the selection of Marc Nadon was overturned by the court itself in 2014 (it turned out Nadon did not meet the eligibility requirements for judges from Quebec), Harper abandoned the reforms entirely.
On top of these efforts, Parliament was given more of a role in appointments by having the bipartisan committee of MPs narrow the prime minister’s list of seven nominees to a shortlist of three, from which the PM would then make the final selection. The superficiality of this process was superseded only by the detrimental effect it had on accountability: when questions about Nadon’s eligibility were raised in 2013, the committee members, regardless of party affiliation, refused to say who supported his inclusion on the shortlist, or even if the committee was unanimous. This lack of transparency allowed the government to point to the committee’s bipartisan composition when defending Na- don’s selection, in effect diluting any accountability for his failed appointment.
The public interviews of the appointees, when the government bothered with that part of the reform, suffered from terrible execution. Given mere days to prepare for the interview, and under guidelines that limited the types of questions asked, parliamentarians posed inquiries that ranged from the mundane to the vacuous. We got to watch as future Supreme Court justices were asked to name their personal heroes or invited to tell childhood anecdotes. Hardly an edifying exercise for members of the public who may have benefited from an opportunity to learn about how someone intended to do their job at one of the most powerful institutions in the country. When things did get interesting, it was only because an MP went entirely off the rails, as NDPer Joe Comartin did in 2011 when he repeatedly questioned Michael Moldaver about his lack of fluency in French, to the point that it could only be interpreted as an attempt to embarrass.
These problems, if addressed properly, can be rectified, and to do so I propose the following:
First, pick up on the 2004 innovation, only implemented once, of having the justice minister appear before the committee to explain and justify her selection.
Second, parli a mentarians should be given weeks, not days, to prepare for the public interview. Allow MPs (and the media and the public) the time to examine prospective justices’ records, whether that includes judgments from their time on lower courts, their academ- ic writing or public statements.
Third, do more to ensure MPs ask better questions. The public deserves to know how a future judge will approach the role, how he or she understands the court’s relationship with Parliament and the government, how they understand rights and their limits, or conceptions of deference and the limits of the court’s power, etc.
Fourth, eliminate restrictions on what MPs can ask. Judicial candidates tend to be intelligent, capable people. In some contexts, such as in relation to how they might decide potential future cases, they can simply refuse to answer a question.
Finally, and most significantly, make the appointee a nominee instead. No, I am not calling for a parliamentary confirmation vote, which risks turning the appointments process into a partisan circus and blurring lines of accountability. Instead, allow the prime minister to put forward the name of a nominee, with the understanding that the formal appointment will follow the public vetting process. If public vetting or the public interview turn up serious questions about an individual’s record or approach to his or her role on the court, the prime minister should be free to select a different nominee.
Critics will complain that this might “politicize” appointments to the court, but this complaint fails to recognize that Supreme Court appointments are inherently political; the fact that the process has been shrouded in secrecy does not mean it has somehow been apolitical historically. Pierre Trudeau, for example, actively sought reformist judges for the court, and succeeded several times in making those types of appointments.
It matters who sits on the court, not only from a merit- based perspective but also from a political one. Judges bring with them the baggage of life experience, including an ideological world view, which while constrained by legal rules and institutional norms nonetheless makes a difference in how the complex, often moralladen issues the Supreme Court routinely faces are ultimately resolved. Transparency and public vetting of the prime minister’s selection will serve to improve the public’s understanding of the court’s work, including its political elements, something that has been ignored for far too long.
CANADA NEEDS TO IMPROVE ITS PROCESS OF SELECTING SUPREME COURT JUSTICES. HERE’S HOW WE CAN DO IT.