Supreme Court selection process needs more thought

by Jacob Ziegel
Globe and Mail
Wednesday, April 13, 2005

On April 7, Justice Minister Irwin Cotler finally released the government's response to the May, 2004, reports of the House of Commons justice committee that confirmed the need for basic changes if the selection procedure for Supreme Court justices is to become more transparent, accountable and democratic.  The justice committee's reports differed widely on points of detail, and to some extent on philosophies, but all parties agreed that the committee should play an active role in filling vacancies on the Supreme Court.

A positive feature of the government's response last week is that it accepts the justice committee's recommendation for the establishment of an advisory committee to assist in the selection of future candidates. However, this concession is hedged with so many restrictions and conditions that the advisory committee would simply act as a rubber stamp for the government's preselected list of candidates.  All Canadians concerned about a meaningful system of reform of our top court should reject the government's proposals and oblige it to confer genuinely independent powers on the advisory committee.

The government's proposals envision an advisory committee of nine members.  Each of the parties in the House of Commons would be represented on the committee by a member of Parliament.  There would be two representatives from the province from which the judge is to be appointed � one nominated by the provincial government and the other by the provincial law society. Of the remaining three members of the advisory committee, one would be a retired judge and the other two would be eminent Canadians who are not lawyers.

Serious difficulties start with the committee's role in developing its own list of candidates to fill vacancies on the Supreme Court.  Astonishingly, the government's proposals would deny the committee any independent role.  Instead, the sitting justice minister would provide the committee with a list of five to eight names previously vetted by federal officials.  The advisory committee's role � and seemingly only role � would be to choose three of those names and submit them to the prime minister so that he can select one of the individuals to fill the court vacancy.

The advisory committee's token role would be eroded still further by the obligation to keep the justice minister fully informed of its proceedings, to keep detailed minutes of its meetings, and to provide the prime minister with detailed reasons for the committee's choice of its three preferred candidates.  One must surely wonder why any self-respecting member of Parliament, or other person, would agree to serve on the committee under such humiliating conditions.

The federal proposals justify the need to fetter the committee's powers in this unprecedented fashion on two grounds.  The first is that a vacancy on the Supreme Court may need to be filled at short notice and that the committee would lack the resources to compile its own list of candidates in the available time.  The short answer to this contention is that the necessary personnel could be seconded to the committee as required from the Department of Justice or the office of the Commissioner for Federal Judicial Affairs.  Alternatively, the House of Commons could easily develop its own resources as it already does in many other areas.

Mr. Cotler's second rationale, reiterated with increasing frequency since last summer, is that the federal government is constitutionally responsible for the appointment of Supreme Court justices and must therefore have confidence in the committee's selection procedure.  This reasoning, in my view, is even weaker than the reason denying the committee the right to compile its own list of candidates.

It is true that the Supreme Court Act provides that appointments to the Supreme Court are to be made by the Governor-General in Council.  However, the Supreme Court Act is not constitutionally entrenched and if it were necessary, the act could be amended (as it has been amended at least five times since 1982) to provide for an advisory committee role.  But in fact there is no inconsistency between the role of an advisory committee and the federal government's final appointive power, and absolutely no need for the federal government to dominate the advisory committee's procedures.

This is shown by Ontario's courts of justice legislation and the corresponding provisions in many of the other provinces providing for the appointment of provincial court judges by the Lieutenant-Governor in Council.  These provinces have strong provincial advisory committees, much stronger in fact than anything envisaged in the federal government's proposals. Yet, it has never been suggested � much less adjudicated � that there is any incompatibility between the role of the advisory committees and the actual appointive powers of the provincial governments.

What is so striking about the federal government's most recent proposals is the government's neurotic obsession with perpetuating executive paternalism into the 21st century.  The Martin administration should take a leaf out of British Prime Minister Tony Blair's recent legislative journal.  The Constitutional Reform Act adopted by the British Parliament earlier this year has radically changed the system of appointment of the judges of the English High Court and Court of Appeal, and has introduced similar basic reforms in the appointment process for the newly created Supreme Court of the United Kingdom.  In both cases, the appointive roles of the British government have been reduced to a shadow of its former self.  The Blair government did not oppose these changes; it initiated them.

Mr. Martin should follow suit and recast the federal government's deeply flawed proposals to be consistent with the commitments he made before he became Prime Minister.

Jacob Ziegel is professor of law emeritus, University of Toronto.