Democracy at Play or Judicial Independence under Seige? The Department of Justice Announces its Selection Process for the Supreme Court of Canada

In a recent news release, the Minister of Justice, Honourable Rob Nicholson, detailed the federal government’s plan for filling the vacant seat on the bench of the Supreme Court of Canada, created by the retirement of Justice Michel Bastarache.

As expected, the Minister indicated his intention to work closely with provincial government representatives and members of legal communities in the Atlantic provinces in particular to create a pool of candidates for Canada’s top court.

Additionally, the Minister confirmed that the Supreme Court nominee will appear before an ad hoc parliamentary committee, not unlike the one that recently heard Justice Marshall Rothstein. The Minister placed particular emphasis on the importance of providing Parliament with a greater role in the nomination process. “Empowering parliamentarians” he explained, “helps promote greater transparency in the selection process for the Supreme Court of Canada.”

Perhaps the most significant precursor to the introduction of Parliamentary hearings into the Supreme Court appointment process came during the fleeting tenure of the Martin Government, in the form of a bipartisan report: Improving the Supreme Court of Canada Appointment Process Report by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Peparedness (Ottawa: Public Works and Government Services Canada. 2004), which was mandated to recommend possible reform of the judicial selection process.

The majority of the (Liberal) members of the Committee expressed a sensitivity to the need for greater transparency in the judicial appointment process for the Supreme Court and recommended inter alia that the Minister of Justice appear publicly before the Committee to detail the process by which outgoing Supreme Court Justices (i.e. Iacobucci and Arbour JJ) would be replaced. However, the majority report stopped short of recommending the use of any sort of Parliamentary proceeding in the appointment process.

In a dissenting report however, (included in the previous link), the Conservative members of the Committee criticized the Liberal approach for failing to provide an acceptable level of transparency in the Supreme Court appointment process. The Conservatives called for both “a public review of a short list of the nominees before a Parliamentary Committee” (“Recommendation 3”) and Parliamentary ratification of the selected nominee (“Recommendation 4”).

Consistent with the Conservative dissenting report in 2004, the Harper government’s use of Parliamentary hearings to appoint Rothstein J., as well as its recent indication that a Parliamentary hearing will be used in the proceedings to replace Bastarache J., signify a move toward greater Parliamentary involvement in the judicial selection process.

Even among professed skeptics, the Parliamentary hearing that helped appoint Rothstein J. met with widespread approval. In an Op-Ed piece that appeared in the Toronto Star, Canadian Bar Association President Bernard Amyot admitted that he had “watched with some apprehension the Parliamentary hearing of Justice Rothstein,” but echoed McLachlin C.J.’s praise of the Parliamentary Committee’s avoidance of “partisan questioning of the candidate,” and its effectiveness in furnishing Canadians with an “opportunity to get to know more about the respective roles and obligations of the government and the judiciary.”

Although only a few would deny that Rothstein J.’s appointment represented a boon to democracy, it is not clear how subjecting Supreme Court nominees to the glow of parliamentary politics affects judicial independence. Like democracy, judicial independence is an unwritten constitutional principle, derived from the preamble of the Constitution Act, 1867 which was famously characterized by the late Chief Justice Lamer in Reference re Remuneration of Judges of the Provincial Court (P.E.I.), [1997] 3 S.C.R. 3 as the “grand entrance hall to the castle of the Constitution.”

The fact that the Members of Parliament who interviewed Rothstein J. exercized discretion in selecting their questions does not mean that future Parliamentarians will be as even-handed. In fact, there are reasons to believe that the upcoming appointment will be more partisan than the previous. The hearing for Rothstein J., as the first of its kind for any Supreme Court of Canada nominee attracted considerable scrutiny, not only of the candidate, but of the process. It is possible, then, that the MP’s who questioned Rothstein J. just exercized greater restraint with an aim to avoiding any political fallout that might result from an overly political question.

Additionally, one of the centrepieces of the Harper government agenda is its programme of sweeping reform to both criminal law and procedure, (see for example: Bill C-13 An Act to Amend the Criminal Code 2nd Sess, 39th Parl., (assented to 29 May, 2008),2008 c. 18). The ‘tough on crime’ stance taken by the Harper government has often placed it at odds with the Supreme Court, most notably in R. v. D.B. 2008 SCC 25); a decision which drew criticism from the Minister of Justice. The Conservative plurality in Parliament, therefore, has an incentive to appoint a judge who will be more sympathetic to its own position.

The upshot of all of this is that, as opposed to Rothstein J.’s Parliamentary hearing, the upcoming appointment of a Justice in place of Bastarache J. will be the true litmus test of whether the inclusion of Parliamentary hearings in the judicial selection process offends judicial indepedence or not.

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