Supreme Court of Canada Appointment Process 101

In addition to being the last court of appeal to all constitutional issues, including the division of powers between the federal and provincial governments, the Supreme Court of Canada is the final arbitrator to the Charter of Rights and Freedoms. In this role, the nine judges give meaning and interpret the relative and open-ended values inscribed or intended in this document. Interpreting the Charter inherently invites the personal philosophies and politics of the hired judge and because of that, the appointment process to the highest court in Canada is subject to so much scrutiny. The following provides a basic critical reading of the rules and procedures for appointing Supreme Court justices.

A note on current debate

Much controversy has developed around the recent naming of two cabinet members, Public Works Minister Christian Paradis and Diane Ablonczy, secretary of state for small business, to serve on the advisory panel that will vet Supreme Court candidates. The nomination committee is designed to provide independent and parliamentary advice to the Prime Minister. One concern, attracting media attention, is that having two cabinet members in a five member panel does not appear independent. Another, is slating Paradis in particular, who was named in connection with the election financing controversy currently under investigation. Both points of contention vocalize a lingering constitutional dilemma, not limited to the Canadian context, on how to guarantee judicial independence. Both, though, accept the fact that the committee extracts three nominee names from an expected five to eight candidates’ pool and the Prime Minister has the final say in the matter.

The Law

The Supreme Court Act, RSC 1985, c S-26 leaves much of the appointment process to the discretion of the appointing Cabinet. It merely provides that the nine justices be appointed by the Governor in Council and that three must come from Quebec. The Act also stipulates that the nominee must be either a judge of a superior court or a barrister or advocate with at least 10 years standing at the bar of a province. By convention, Ontario is entitled to be represented by three judges, Western Canada by two and Atlantic Canada by one. Convention also has it that the Prime Minister makes the final choice and appointment. The Act does not prescribe a process to achieving these objectives and as such has remained unstructured, vague and lacking transparency.

The Canadian Association of Law Teachers (“CALT”) and the Canadian Bar Association (“CBA”) have proposed adopting a system of committee nominations but were met with resistance by the Mulroney and Chretien administration. However, in 2004, Prime Minister Paul Martin approved a nomination process by a special parliamentary committee that would eventually report to parliament. This translated to an official Advisory Committee on Supreme Court of Canada appointments that forms each time there is a vacancy.

The use of advisory committees increases the level of consultation in the process; however, it does not radically democratize the appointment system. The Prime Minister is the one who still has the power to choose the final nominee from the short list. Further, he may be consulted by the Minister of Justice who is the person responsibility for submiting the initial list of seven or eight candidates to the committee. This discretion jeopardizes the principle of judicial independence, which is partly designed to prevent any reasonable apprehension of bias.

“Power concedes nothing without a demand. It never did and it never will” Frederick Douglass, 1857

Whether the advisory committee contained two members of cabinet or more, critics should not remiss the larger procedural context that endows the Prime Minister with so much power that it flouts the appearance of judicial independence. The process of Supreme Court appointment is still in need of reform. For such a project, revisiting the old CBA recommendations or CALT’s or even Jacob Zeigel’s “Merit Selection and Democratization of Appointments to the Supreme Court of Canada” published in 1999 can shed light on the current shortcomings of the appointment process and especially the advisory panel system. Under a process that is less than fully transparent, inaccessible to Parliamentary or public scrutiny and which still shows no disposition to surrender executive patronage powers, Zeigel’s questions still remain relevant today.

What role does the Chief Justice of Canada play? To what extent does the Minister of Justice confer with the attorney general or attorneys general of the province or region from which the candidate is to be appointed? What is the role of lobbyists for special interests or on behalf of specific candidates? And finally, in the Charter era, how much attention does the federal government pay to the constitutional philosophy of prospective appointees?