Drop the secrecy for Supreme Court appointments, experts say
OTTAWA — The political dust- up between Prime Minister Stephen Harper and Chief Justice Beverley McLachlin over the government’s ill- fated Supreme Court nomination might have been avoided if such appointments were carried out in a more transparent way, some legal experts say.
WHAT HAPPENED?
Conservative sources claimed McLachlin had lobbied against the prime minister’s plan to appoint Marc Nadon to a vacant Quebec seat on the Supreme Court, Postmedia News reported May 1. The court issued a statement saying McLachlin was consulted and had merely flagged a question about eligibility. Harper’s office then issued a statement saying Justice Minister Peter MacKay thought it “inadvisable and inappropriate” for the prime minister to take a phone call from McLachlin after she “initiated” contact with MacKay. The implication was that the she had overstepped her role.
McLachlin’s office produced a timeline showing her consultation took place long before Nadon was nominated. The opposition called on the prime minister to apologize for undermining the court and McLachlin personally, in the aftermath of a Supreme Court finding in March that Nadon did not meet the Quebec-specific requirements to sit on the top bench.
HOW ARE THE JUSTICES CHOSEN?
The prime minister names the members of the top court, but the means have varied.
Harper has appointed five judges. He chose the past three through a process in which the justice minister consults with the attorney general of the province involved and with legal experts. The public can submit comments to a government website. The justice minister then compiles a list of candidates to be reviewed, in private, by a panel of five MPs: three Conservatives, one Liberal and one New Democrat. The panel provides a private short list. The prime minister then chooses his nominee, who appears before an ad hoc parliamentary committee.
ARE THERE OTHER RULES?
The Supreme Court Act stipulates that at least three of the nine judges must be from Quebec, as the court needs judges familiar with Quebec’s civil law system. Of the remaining positions, traditionally three are from Ontario, two from Western Canada and one from Atlantic Canada.
WHAT’S WRONG WITH THE PROCESS?
“There has been a lack of transparency, an absence of parliamentary input, and very little by way of public involvement,” said Liberal MP Irwin Cotler, a former justice minister.
Said Adam Dodek, a professor of constitutional law at the University of Ottawa: ““There appears to be secrecy for secrecy’s sake. I don’t see justification in making the process itself secret.”
HOW COULD JUDGES BE CHOSEN?
Dodek suggested the federal government publish a set of guidelines that spell out the qualifications for appointment. An advisory committee, with representation from the parties, outside experts and the public, could identify candidates and give the justice minister a short list.
Public hearings could be held via a parliamentary committee, and the minister of justice would be a witness, Dodek suggested. The committee would be given time to submit a report, slowing the process for more critical reflection.