Appointing New Judges to the Supreme Court of Canada

Benjamin Alarie
Saturday, May 14, 2011

Justices Binnie and Charron announced on Friday, May 13, 2011 that they would be retiring from the Supreme Court of Canada. In order to better understand the likely effects of this on the implicit policy preferences of the members of the Court, I analyzed all the judgments of the Supreme Court of Canada under Chief Justice McLachlin from 2000 SCC 1 to 2011 SCC 20 using the method of Martin and Quinn (2002) that Andrew Green and I have used extensively in earlier work (see here, here, and here).

The updated estimates of the position of the justices in a linear policy space is illustrated below. With the exception of Justices Fish (more liberal) and Deschamps, Rothstein, and Cromwell (more conservative), the justices are tightly bunched in the middle. The current estimates suggest that Justice Abella is the median justice given the current composition of the Court, with an ideal point of -0.05.

The Law is Too Important to Leave to Politicians

Friday, May 27, 2011

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 Right Way to Pick Supreme Court Judges

Monday, August 22, 2011

This commentary by Prof. Emeritus Jacob Ziegel was first published in the National Post on August 19, 2011.

Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of August more than three months ago. Yet it was only on Aug. 5 that the Minister of Justice announced the appointment procedure the federal government intended to follow in appointing their successors on the Court.

A starved media fell on the announcement enthusiastically, but failed to ask some relevant questions. Will the proposed selection procedure result in the choice of the best-qualified candidates and, if the answer is no, what would be a better procedure? What role does the Supreme Court of Canada play in Canada’s constitution and what qualities should we look for in appointments to the Supreme Court?

There’s much reason to doubt that the federal government has chosen the procedure best calculated to lead to the appointment of the best qualified candidates. Stripped of all the rhetoric, it seems safe to anticipate that the successful candidates will be those whose assumed legal and constitutional philosophies appeals most to Prime Minister Harper and who meet his criteria of judges “who apply the law and don’t make it.”

Unacceptable Delays in Supreme Court Appointments

Tuesday, September 27, 2011

This commentary was first published in The Lawyers Weekly on Sept. 23, 2011.

It is now four months since Justices Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of July. Nevertheless, and disturbingly so, their successors have still not been appointed and the court remains two short of its full complement of nine judges.

When addressing the annual meeting of the Canadian Bar Association in Halifax last month Chief Justice Beverley McLachlin urged the federal government to ensure that the new justices would be appointed in sufficient time for them to take their places on the court when the court begins its 2011-12 term hearing of appeals in early October.

Her wish is unlikely to be granted. Rob Nicolson, the minister of justice, only announced on August 5 the procedure the federal government intended to follow in filling the two vacancies. The procedure involves the establishment of a five member selection panel of the House of Commons to review a list of names submitted to them by the minister and the committee's  submission of a short list of six unranked candidates to the prime minister and the minister of justice.

Supreme Court Appointments and Wrong Priorities

Tuesday, December 20, 2011

This commentary by Prof. emeritus Jacob Ziegel was first published in The Hill Times on Dec. 12, 2011.

On Nov. 14, former chief justice Roy McMurtry of Ontario and several current members of the Ontario Court of Appeal attended the swearing-in at the Supreme Court of Canada of the two new appointees to the court, Justices Michael Moldaver and Andromache Karakatsanis, both from Ontario. While they were in Ottawa, a reporter for The Lawyers Weekly asked McMurtry and the Appeal Court judges for their reactions to the questioning of these candidates by the House of Commons Ad Hoc Committee before their appointments were confirmed by the Prime Minister.

McMurtry said he thought the questioning of Justice Moldaver was too aggressive and he expressed concern that Canada was gravitating to the type of hostile questioning of candidates for appointment to the U.S. Supreme Court by members of the U.S. Senate Judiciary Committee. McMurtry was apparently referring to NDP MP Joe Comartin’s criticism of Justice Moldaver’s lack of bilingualism and his skepticism that the justice would ever become adequately bilingual despite his assurances to the committee that he would give this objective a top priority.

JD student Andrew Stobo Sniderman in Maclean's - "Harper v. The Judges"

Tuesday, August 21, 2012

JD student Andrew Stobo Sniderman has written an article in Maclean's magazine looking at the way many important issues facing the country are being tackled not by Parliament, but by the courts ("Harper v. The Judges," August 21, 2012).

Read the full article on the Maclean's website.

JD student Louis Century writes in Law Times - "Forcing judges to judge old law erodes democracy"

Monday, July 30, 2012

JD student Louis Century, a summer law student with the David Asper Centre for Constitutional Rights, has written a commentary in the "Speaker's Corner" section of the Law Times, "Forcing judges to judge old law erodes democracy," (July 30, 2012).

Read the full commentary on the Law Times website.

Constitutional Roundtable: Michal Bobek

Constitutional Roundtable  and
The Centre For European, Russian And Eurasian Studies (CERES)

Michal Bobek
University of Oxford Faculty of Law

Comparative Law in European Supreme Courts: Why is nobody interested in Originalism? 

Wednesday, March 14, 2012
12:30 – 2:00

Prof. Kent Roach, with Jonathan Rudin, writes about aboriginal sentencing in the Globe and Mail

Friday, April 20, 2012

In a commentary in the Globe and Mail, Prof. Kent Roach and Jonathan Rudin, program director of Aboriginal Legal Services of Toronto, explain the process behind aboriginal sentencing in the courts ("Special consideration for aboriginals in the courts is a matter of fairness," April 20, 2012).

Read the commentary on the Globe and Mail website.

Prof. Lisa Austin - "Stop hiding behind the phone book, Mr. Toews"

Wednesday, December 7, 2011

In a commentary in The Globe and Mail, Prof. Lisa Austin examines how new lawful access legislation will expand the government's ability to get access to private internet-related information without judicial oversight ("Stop hiding behind the phone book, Mr. Toews," Dec. 6, 2011).

Read the full commentary on The Globe and Mail website.

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