This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on May 26, 2011.
Earlier this month, Justices Ian Binnie and Louise Charron, both from Ontario, announced their intention to retire from the Supreme Court of Canada at the end of the current session of the court. How their successors will be chosen is an as-yet unanswered question. Will Prime Minister Stephen Harper be able to resist the temptation to appoint replacements that will reflect his philosophy as to the role of the judiciary, or will he opt for a more credible and democratic system that has the approval of the country at large?
That Harper should have this unfettered discretion is itself very troubling and again draws attention to a serious lacuna in Canada's constitutional structure. In fact, among countries with a written constitution, Canada is probably alone in failing to provide how the members of its highest court are to be selected. The Supreme Court of Canada Act (which is not entrenched in the Canadian constitution) only mandates a court of nine judges, three of whom must be appointed from Ontario and three from Quebec. Nothing is said about the method of their selection.
The omission has become all the more conspicuous because of the critical role played by the supreme court as the final arbiter of disputes in all public and private law questions, federal and provincial, and the interpretation of Canada's constitution, especially the Canadian Charter of Rights and Freedoms. Though not generally appreciated, the Canadian Supreme Court's jurisdiction is actually much broader than the U.S. Supreme court's jurisdiction, yet the procedure for filling vacancies on the U.S. Supreme Court is constitutionalized, transparent and much more rigorous than the current procedure for Canadian appointments.
Over the past 40 years many efforts have been made to entrench the Canadian Supreme Court and to establish a balanced and credible system for appointments to the court. Lamentably, none of them has succeeded. Though reasons for the failure are many, a dominant reason has been the reluctance of successive governments - Liberal and Conservative - to relinquish the unaccountable appointive powers which the Supreme Court Act currently vests in the incumbent government.
Some progress was made in breaking the deadlock in 2005 when the Paul Martin government agreed to the establishment of a non-statutory advisory committee to provide the prime minister with a short list of candidates when a vacancy needed to be filled on the Supreme Court. That route was actually followed in the appointment of Justice Marshall Rothstein to the court in 2006, but has not been used since.
In any event, the selection method should not depend on the vagaries of successive governments of whatever stripe. At a minimum, it should now be entrenched in statutory form and should include the following essential features. First, it should require the establishment of a balanced selection committee to provide the prime minister with a short list of recommended candidates, from whom the prime minister must choose one. Second, the selection committee must include provincial representatives as well as representatives of the bench and bar and members of the public. Third, there must be public hearings before an all-party justice committee of the House of Commons to enable both the members of the committee and the Canadian public at large to evaluate the prime minister's choice and to give their reactions before the appointment is confirmed.
If he subscribes to this democratic philosophy, it shouldn't be difficult for Harper to give it flesh and bones. After all, it was the Conservatives who, while in opposition, insisted on public scrutiny of supreme court candidates before an appointment was made. It was also a Conservative government, led by Mr. Harper, that arranged for such a hearing involving Justice Rothstein before his appointment was confirmed. Justice Rothstein acquitted himself admirably and the Canadian public obtained a much better appreciation of his personality, background and values than could have been provided after the fact by newspaper articles and media interviews.
Harper would display real statesmanship, not only by reviving this precedent but by giving it a semi-entrenched status and putting it in statutory form, together with requiring a selection committee.