Get it right on the court

Prime Minister Justin Trudeau will have an early opportunity to start putting his stamp on the Supreme Court of Canada, with the impending retirement of Justice Thomas Cromwell.

And aside from putting a new face on the top court, the opening gives the prime minister a chance to restore a more open, transparent process for appointing members of one of the country’s most important institutions.

Trudeau and his justice minister, Jody Wilson-Raybould, should decisively turn the page on how the Harper government handled appointments to the court. Over the past three years the Conservatives dumped any pretence of openness and reverted to the old practice of making Supreme Court appointments the sole prerogative of the prime minister.

That’s perfectly legal, but it ran counter to a decade of efforts by all parties to make the process more accountable. It was also completely at odds with what Harper committed to doing in the early, more hopeful days of his government.

To his credit, Trudeau has already instructed Wilson-Raybould to do better on these important appointments. In his mandate letter to the justice minister, he told her to make sure that “the process of appointing Supreme Court Justices is transparent, inclusive and accountable.” That’s encouraging, but it leaves wide open just how that should be done.

Governments have been basically making it up as they go over the past decade. Liberal justice minister Irwin Cotler opened the door a crack in 2004 when he met a parliamentary committee to explain how he would appoint judges. Two years later, the Harper government brought in a welcome change when it had a newly appointed judge, Marshall Rothstein, actually appear before MPs to answer some carefully circumscribed questions.

At the time, there were typically Canadian fears that the whole thing was a dangerous experiment that would lead to an “American-style” politicization of the top court. No such thing happened, of course, but Canadians did get for the first time a chance to hear from one of the nine members of the most powerful court in the land.

In 2013, though, Harper dumped the whole idea of wider consultations and public hearings when his attempt to appoint Marc Nadon to a Quebec seat on the Supreme Court blew up in his face. After that he named three more justices entirely on his own, in what Cotler described as “a serious regression to a process that is secret, unaccountable and unrepresentative.”

The Conservatives were essentially throwing a snit because the Supreme Court itself rejected Nadon as being ineligible for a Quebec seat. At the same time, the court was handing the government a string of defeats on issues ranging from prostitution laws to mandatory minimum sentences.

The task for the Trudeau government is to come up with a new process that will be both open and sufficiently well thought out that it won’t be abandoned at the first whiff of controversy. There’s been more than enough improvisation in recent years.

It needs to involve wide consultations with the provinces, all parties in the Commons, the legal community and others with a stake in the justice system. It must, of course, be free of partisan or overtly political considerations.

It should also include some form of the public hearing that Harper introduced in the first years of his government. There’s nothing wrong with a new member of the court meeting with members of a parliamentary committee to face questions about his or her record and judicial philosophy.

We don’t have a system of formal checks and balances on the power of the executive, as the Americans do with the Senate approving (or, these days, refusing to approve) the president’s nominees to the Supreme Court. But a properly conducted hearing can at least play a useful role in educating Canadians about a court that routinely shapes public policy on vital social issues. It was done before, until Harper ditched it.

The Trudeau government has been busy junking the Harper legacy in a range of areas. It should add naming new members of the Supreme Court to that list.