TOP COURT SPOT FORCES GRITS’ HAND

Justice’s surprise retirement a test for transparency

Page 30 of the Liberal campaign book was a faraway consideration when party strategists penned it last summer.

“We will make the Supreme Court appointment process more transparent.”

The pledge was conceived and calculated with 2018 in mind, the mandatory retirement date for Chief Justice Beverley McLachlin, the court’s presumed next departure. That left three years to chew over the details of how to democratize the hiring of one of the nation’s nine most important people.

But the surprise early retirement of Justice Thomas Cromwell, announced last week for Sept. 1, forces the Prime Minister’s Office and Justice Department to scarf that meaty election commitment all the way down right now.

“We will work with all parties in the House of Commons,” it states, “to ensure that the process of appointing Supreme Court justices is transparent, inclusive, and accountable to Canadians.”

The mouthful of democratic reform, under an accel- erated timetable, seems to be a tussive for the government.

Justice Minister Jody Wilson-Raybould, in a weekend response to Postmedia, merely reiterated page 30 of the Liberal’s “Real Change” manifesto, stressing that the eventual nominee must be functionally bilingual.

Questions went unanswered about the specifics of how the promised seethrough will be performed in front of the country. In the past, Canadians only learned of the powerful appointment in an after-the-fact government press release.

“I think they were hoping for more time to deal with this,” said Emmett Macfarlane, a political scientist at the University of Waterloo and author of Governing From the Bench: The Supreme Court of Canada and the Judicial Role.

“My concern is they don’t bring in some good reforms to improve transparency. The status quo is unacceptable.”

Whatever transpires, it will be civil compared to the brutal political spectacle in Washington over President Barack Obama’s Supreme Court nomination of Merrick Garland in an already amped-up presidential election year.

Newfoundland and Labrador have wasted no time in lobbying for the appointment of someone from the Rock, the only province yet to be represented on the high court. Prince Edward Island’s last Supreme Court jurist was Sir Louis Henry Davies from 1901 to 1924. The highly respected Cromwell, 63, is from Nova Scotia, which experts suggest will prevent a repeat there. Officially bilingual New Brunswick seems to be holding the wild card spot.

Although the province had two Supreme Court justices in recent years — francophones Gérard La Forest and Michel Bastarache — Cristin Schmitz, writing in the latest Lawyers Weekly, says informed speculation within the legal community is betting on New Brunswick Chief Justice Ernest Drapeau.

He is a close family friend of Liberal House leader Dominic LeBlanc, himself an Acadian lawyer from Moncton and scion of Pierre Trudeau-era cabinet minister and former governor general Romeo LeBlanc, writes Schmitz.

The Charter era has made the Supreme Court a potent force in public policy and, whomever government nominates, the reformed process will be judged almost as closely. As court scholar Adam Dodek notes, more is known about the process for selecting a new pope.

Wilson-Raybould will put out feelers to McLachlin, provincial attorneys general from the Maritimes and Newfoundland and Labrador as well as leading members of the legal profession. Beyond that, and at the very least, the government is expected to return to some of the elements in the shortlived selection process created by Paul Martin’s Liberals beginning in 2004.

It included publishing the job criteria and protocol for the process; inviting the public to suggest potential candidates; and creating an advisory committee to vet the long list of potential candidates.

While the process was more transparent, observers say it fell far short of being meaningful. Committee members only learned the nominees names and received their biographical information a day before the three-hour hearing.

“I’m less and less convinced that having the candidate appear before an ad hoc committee of Parliament that doesn’t have any authority really achieves anything,” said Carissima Mathen, a University of Ottawa law professor and Supreme Court expert.

“It becomes, frankly, a bit of a dog-and-pony show. The real accountability lies with the executive explaining their choice. What were their priorities? How did they balance the various factors? And how did they choose from among a plethora of qualified persons?”

I THINK THEY WERE HOPING FOR MORE

TIME TO DEAL WITH THIS.