This commentary was published in the National Post on September 11, 2008.
In the spring of this year, the government established an advisory committee to assess candidates to fill the vacancy left on the Supreme Court of Canada by the resignation of Justice Michel Bastarache. Unfortunately, the committee has fallen victim to infighting between government and opposition. The squabbling has been used as an excuse by the Prime Minister to bypass the committee altogether and to unilaterally nominate Justice Thomas Cromwell of the Nova Scotia Court of Appeal in a clear departure from the selection procedure announced by Justice Minister Rob Nicholls on May 28.
Even so, since the nomination must also run the scrutiny of yet another House of Commons committee -- which cannot be established till after the election-- it is clear that the vacancy on the Supreme Court will not be filled till late this year at the earliest, and probably not till early 2009. As Canada’s most senior court, with a heavy case load and awesome responsibilities, the court surely deserved better treatment. We are also entitled to ask: How could the selection procedure have become so distorted and what can be done to avoid the same thing happening in the future?
So far as the first question is concerned, much of the blame lies at the government’s feet. The selection procedure unveiled by the Justice Minister in the spring departed in basic respects from the procedure adopted by the Martin administration in 2005 -- the one that led to the appointment of Justice Marshall Rothstein in 2006 by none other than Stephen Harper. The earlier procedure involved the establishment of a nine-member committee made up of a nominee from each of the political parties in the House of Commons, with the other five majority members being appointed by the provincial attorneys general of the provinces from which the vacancy was to be filled and by nominees of other constituencies.
Justice Minister Nicholls rejected this broadly based model in favour of a totally politicized committee of five. This committee only comprised members of Parliament, one from each of the opposition parties and two on the government side. (The government never explained the rationale for giving itself double representation on the committee.) Adding further controversy to the committee structure was the fact that one of the government’s nominees, Public Works Minister Christian Paradis, was involved in litigation before the Federal Court of Canada in a dispute over the allocation of his electoral expenses.
As a result, more than three months after its establishment, the committee still had not agreed on a short list of candidates to present to the Prime Minister. Did this justify Mr. Harper bypassing the committee altogether and announcing his own candidate? And what will Mr. Harper gain by doing so? The answers again are patently political. Mr. Harper obviously wanted to avoid criticism during the election that he was hampering the work of the Supreme Court by leaving it short-handed. At the same time, he must have felt he could strengthen his political support in the Maritimes by announcing as his candidate a highly regarded Nova Scotian jurist with excellent credentials — and at the same time crush any aspirations his arch enemy in Newfoundland, Premier Williams, might have had to secure a first-time Newfoundland appointee to the court. Rumours to the contrary notwithstanding, Newfoundland had at least one potential judicial candidate, a former Rhodes scholar, who was also highly qualified to fill the vacancy.
Much of this posturing and manipulation could have been avoided if the procedure for the selection of Supreme Court judges were prescribed by legislation and not left to the caprices of successive federal governments. Most other countries that respect the rule of law and the separation of powers between the executive and the judiciary -- including most recently the United Kingdom -- have adopted a legislatively prescribed or constitutionally entrenched procedure that does not give the executive carte blanche. Canada is a striking exception to the rule.
A House of Commons committee that last year examined procedures for judicial appointments by the federal government was strongly urged by several witnesses to recommend adoption of federal legislation to put an end to patronage appointments and other distortions that have long undermined the credibility of the appointments process. Regrettably, of the four parties represented on the committee, only the Bloc Québécois had the political will to endorse the witnesses’ recommendations, which, though not particularly aimed at appointments to the Supreme Court, were just as apt to fill that need as well.
It is surely time to bite the bullet.