The Pros and Cons of Bypassing Justice Cromwell’s Parliamentary Review

A new year often brings about resolutions. In general, such resolutions are often optimistic promises to eat well, exercise more or take up a hobby. Prime Minister Stephen Harper’s new year resolutions could include finishing his book about the history of hockey, wearing more sweaters or perhaps using the parliamentary review process he created for his future SCC appointments.

Much has been written about Justice Cromwell’s initial nomination, the possible effects of prorogation on the nomination and finally the official appointment on December 22, 2008. Our friends at Slaw.ca have even created The Thomas Cromwell Pages after the government failed to do so.

The incredible controversy surrounding Justice Cromwell’s appointment started on September 5 when Harper called off an all-party committee to screen candidates. The procedural controversy stands in stark contrast to the developing consensus about Justice Cromwell’s abilities as a jurist. Professor James Stribopoulos described Justice Cromwell as an “extraordinarily bright and impeccably fair jurist.” Dalhousie Law Professor Phillip Gerrard added ”during [Cromwell’s] decade on the Nova Scotia Court of Appeal he has produced judgments in many areas of law which are models of clarity, reasoning, and just results.” SCC Chief Justice Beverley McLachlin praised Justice Cromwell as “a judge of the highest ability, integrity and intellect.” Even newly minted Liberal leader — and Harper adversary — Michael Ignatieff said Justice Cromwell was a “superb appointment.”

Given that a broad spectrum of academics, politicians the judiciary agree Justice Cromwell is an eminently qualified jurist, this post will focus on Harper’s decision to bypass parliamentary review. The parliamentary screening process for Supreme Court nominees was introduced in 2006 when the Conservatives won power and first used in the appointment of Justice Marshall Rothstein. What are the pros and cons of bypassing parliamentary review for Justice Cromwell?

Pro – The SCC Finally Has a Full Bench

The Supreme Court rightly exists above partisan politics and Canadians of all political persuasions will benefit from its return to a full complement of judges,” said Harper in his statement.

One would expect Chief Justice McLachlin is anxious to ensure the court has its full complement of judges before its winter session begins on January 12. Without a full bench since Justice Bastarache’s retirement in April, the Chief Justice would potentially have to remove a Justice to prevent tied judgments. Furthermore, current Justices would have an increased workload until the nomination is made.

David Asper echoed these sentiments in the National Post:

Given the state of affairs in Parliament, the process would have been such that the court would have been missing a member for the term of hearings that is about to begin. What’s worse? Make the appointment now so that the Supreme Court can function properly — or wait for the interview process to play out, and miss having the court make use of Justice Cromwell’s skills?

The PM called on the leader of the opposition, solicited his views and then made the appointment. He determined it was worse to delay the appointment, and he was correct.

A recent Globe and Mail editorial questioned Asper’s logic. After two weeks of appeals beginning January 12, the SCC is scheduled to break for two weeks of judgment writing before hearing appeals for two weeks beginning February 10. The editorial points out it would have been possible to hold hearings before February 10 with only two to four weeks with a less than full strength SCC. If the government were to fall, the delay could be longer. But the Globe questioned why Harper waited until September to make Justice Cromwell’s nomination after Justice Bastarache’s retirement in April.

Con – We Look More like a Dictatorship 

Prime Minister Harper has made two significant decisions since the Governor General agreed to his request to prorogue parliament on December 4. The first was the appointment of 18 Senators, contrary to Harper’s previous pledges to reform the Senate. The second was the Justice Cromwell nomination.

The appointment of both Senators and SCC Justices is within the Prime Minister’s constitutional powers. However, both of these actions take place under unique political circumstances with the government on the brink of a vote of non-confidence and prorogation granted at the start, rather than the end, of a parliamentary session. It is arguable that under circumstances where the government may have lost the confidence of the house, parliamentary review of the Prime Minister’s decisions is even more important. A review of this nature is impossible while parliament is prorogued.

Pro – The Leader of the Official Opposition was Consulted

In perhaps a new spirit of collaboration, Liberal Leader Michael Ignatieff confirmed Harper consulted him prior to the confirmation of Cromwell’s nomination. According to reports, Ignatieff consulted with his current and former justice critics, concluding Cromwell is an outstanding appointment and that “certain things that should be made highly political but this is not one of them.” It appears other parties were not consulted about the appointment.

Con – Bad Precedent for Future Appointments 

What is left of the parliamentary review process created by the Conservative government in 2006? The Prime Minister’s official statement said:

Citing the urgency of filling the eight-month vacancy on the Supreme Court as the source of this exception, the Prime Minister restated his commitment to returning to a formal mechanism through which Parliament can scrutinize future Supreme Court nominees.

For aforementioned reasons, despite his lack of parliamentary review Justice Cromwell will likely have a distinguished tenure on our top court. But there is little to stop Harper, or any future Prime Minister from using Justice Cromwell as a precedent for bypassing parliamentary review. This could be problematic if a future SCC nominee is either unqualified or inspired by his or her ideology rather than abilities.