By: Jacob Ziegel
This commentary 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.”
The procedure announced involves the appointment of a House of Commons Selection Panel of five members of Parliament, three Conservatives and one each from the Liberal and New Democratic parties. The committee will then compile a short list of six unranked candidates for the Justice Minister and the Prime Minister’s consideration. Two will be selected to appear at a public hearing of an ad hoc Parliamentary committee of the House of Commons, but without the committee being authorized to indicate its support or disapproval of the candidates. The Prime Minister will then announce the names of the successful candidates.
These successive layers convey the veneer of a democratic process and are an improvement on the secrecy that surrounded the Supreme Court selection process before the changes that were first introduced under Paul Martin in 2005.
Nevertheless, the new procedures have two manifest weaknesses. The first is that the members of the selection panel will not be free to select the candidates they wish to consider and to recommend for the appointments. Rather their choices will be limited to the names put before them and those names will have been carefully vetted beforehand by the Minister of Justice and his officials. It is inconceivable that the three Conservative MPs on the ad hoc committee will not bear in mind Mr. Harper’s well-known views about the role of Supreme Court judges and in fact the MPs are on record in supporting the government’s law-and-order agenda.
The second and still more serious objection to the selection procedure is that it misconceives the status and role of the Supreme Court of Canada in Canada’s constitutional structure. The Supreme Court is an independent institution and is not accountable to Parliament for its decisions or to the incumbent government. It is the guardian of Canada’s constitution and of the basic values enshrined in the Canadian Charter of Rights and Freedoms. The Supreme Court is also the final arbiter in Canada on all questions of private law, federal and provincial, and on the interpretation of the Quebec civil code.
These features confer on the Supreme Court of Canada greater powers and responsibilities than those vested in most other supreme courts, including the U.S. Supreme Court and the Supreme Court of the United Kingdom. The selection procedure for appointments to the Supreme Court should reflect the Court’s unique status. Selection committees for Supreme Court judges should reflect a broad range of interests and institutions at both the provincial and federal levels and should not be confined to members of Parliament.
Disturbingly, the partisan committee structure adopted by the Harper government for compiling the short list of candidates for appointments to the Supreme Court may lead the Supreme Court down the same ideologically riven path as the U.S. Supreme Court. Judges will be appointed for their assumed constitutional and political ideologies and, on important issues, the Canadian Court may be split along a five and four axis as is now regularly the case the United States. (Another alarming prospect, given the majority government the Conservatives now hold and the anticipated early retirement of more Supreme Court judges, could be a Supreme Court filled almost entirely by conservative judges by the end of Mr. Harper’s current mandate.)
Canadians should resist being driven along either of these dangerous paths. There are better ways to select the members of the Supreme Court of Canada. We should embrace them.
