Choices and controversy: judicial appointments in Canada.

• Author: Mathen, Carissima

PART I

What do judges do? As an empirical matter, judges settle disputes. They act as a check on both the executive and legislative branches. They vindicate human rights and civil liberties. They arbitrate jurisdictional conflicts. They disagree. They bicker. They change their minds.

In a normative sense, what judges "do" depends very much on one's views of judging. If one thinks that judging is properly confined to the law's "four corners", then judges act as neutral, passive recipients of opinions and arguments about that law. (1) They consider arguments, examine text, and render decisions that best honour the law that has been made. If judging also involves analysis of a society's core (if implicit) political agreements--and the degree to which state laws or actions honour those agreements--then judges are critical players in the mechanisms through which such agreement is tested. In post-war Canada, the judiciary clearly has taken on the second role as well as the first. Year after year, judges are drawn into disputes over the very values of our society, a trend that shows no signs of abating. (2)

In view of judges' continuing power, and the lack of political appetite to increase control over them (at least in Canada), it is natural that attention has turned to the process by which persons are nominated and ultimately appointed to the bench. Such attention is enhanced by the significant degree of turnover on the Supreme Court (a frequent subject of discussion) over the last few years. (3) The power to shape our courts determines Canada's legal landscape for years to come. Yet that power is subject to relatively few constitutional constraints. Section 96 of the Constitution Act, 1867 states that "The Governor General shall appoint the Judges of the Superior, District, and County Courts [in each Province]." (4) The appointment power for these courts is followed by sparse criteria for selection, and some basic guarantees of security of tenure. (5) Provincial courts are not mentioned. While there is a provision for Parliament to create a "General Court of Appeal for Canada", the power to appoint to such a court is not specified. (6) Even for those courts where an appointment power is included, the process is marked by an exceptionally narrow corridor. Subject to a few exceptions, a blank slate is provided to the Governor-in-Council (in essence, the Prime Minister and the Minister of Justice). Canada is operating a 21st-century judiciary bound by 19th-century rules concerning judge-making. (7)

In response to the dearth of structural constraints, a number of reforms drawing from different jurisdictions, including the United Kingdom, Germany, and the United States, have been proposed. The reforms generally begin with the argument that the nomination and appointment process must be more open and transparent, often focussing on the prospect of legislative branch involvement such as a Parliamentary hearing. Inevitably, objections are raised, some of which merit serious consideration and some of which are overstated. In the main, I believe that the debate has been distorted by the sense that the only choice is between introducing judicial hearings and maintaining the status quo. (8)

We need to think carefully about what we want judicial hearings to achieve, and whether they can achieve those ends. I am willing to be persuaded about hearings because I think we have only just begun to analyze them. (9) That said, judicial hearings that are a sham or farce--in that they cannot possibly reveal useful insights about the candidates or have any real impact on the subsequent appointment--are probably worse than no hearings at all.

While people almost invariably focus on the Supreme Court, the judiciary is more than that. Many important cases are settled in other courts. (10) In addition, the majority of Supreme Court justices are selected from among lower courts, for which the appointment process can be equally opaque (though some jurisdictions have made good progress). (11) Since the two most recent debates involve the Supreme Court (the appointments of, respectively, Justices Abella and Charron in 2004 and Justice Marshall Rothstein in 2006) this paper will focus on lessons learned there, but the reader should keep the broader context in mind.

PART II

As others have ably demonstrated, the bald patronage and lack of rigour surrounding federal judgeships have been contentious for a good part of our history. (12) In 1989, former Prime Minister Brian Mulroney instituted a series of judicial advisory committees (JACs) in each province to function as a screening device for appointees to s. 96 courts. (13) The committees comprised seven members: three representatives chosen by the federal government and one by the provincial government; a designate of the provincial Chief Justice; and representatives of the provincial law society and the provincial branch of the Canadian Bar Association.

Until recently, the JACs ranked candidates as "recommended"; "highly recommended"; and "unable to recommend". (14) The JACs ordinarily did not interview candidates, but consulted widely to become informed as to someone's standing in the legal and broader community. Nor did the JACs appoint candidates--that power remained with the Minister of Justice (for s. 96 courts) or the Prime Minister (for the Supreme Court). (15)

Under the new system, it is difficult to say whether patronage or political considerations diminished. Studies over the 1980s and 1990s revealed continued patterns of party affiliation or support among a significant per centage of appointees. (16) At the Supreme Court, while nominations and appointments have always had political aspects, outright lobbying was rare. (17) That appeared to change with the sudden death of Justice John Sopinka in November 1997, which was followed by blatant jockeying in favour of two Ontario Court of Appeal justices: John Laskin and Rosalie Abella. (18) The struggle was unseemly (and, it should be noted, engineered by their supporters rather than the judges themselves). Prime Minister Chretien eventually appointed Ian Binnie, a renowned advocate and senior partner at a national law firm. Like Sopinka, Binnie proceeded from the private bar to the Court.

The Court continued to experience turnover. In the early 2000s, Louise Arbour replaced Peter Cory, and Louis LeBel replaced Antonio Lamer. Marie Deschamps and Morris Fish replaced, respectively, Claire L'Heureux-Dube and Charles Gonthier. Then, in 2004, came the unexpected departures of Frank Iacobucci and Louise Arbour. Both were highly regarded, both were from Ontario, and both were progressive regarding Charter issues. (19) Strong justices, their exits represented a loss for the Court.

While the Court always faces controversial cases, 2004 was particularly volatile because of the debate over same-sex marriage. Beginning in 2003, several cases launched in provincial courts challenged as discriminatory the opposite-sex definition of marriage. By March 2004, three provincial courts of appeal had agreed. (20) The federal government, declining to seek leave to appeal any of these decisions, directed the Supreme Court to hear a reference concerning draft legislation entrenching a new definition of marriage. (21)

It is safe to say that the courts' redefinition of marriage was a lightning rod for those opposed to so-called "judicial activism". (22) For persons already suspicious of the idea that abstract concepts of rights can mandate the re-ordering of long-standing social mores and arrangements, nothing could be more threatening than a change to the institution of marriage. Given the lower courts' near-unanimous conclusion that the common law definition of marriage violated the Charter, the Supreme Court's conclusion was largely expected but no less controversial for that. (23) The tension was exacerbated because the federal reference rendered moot the work of a Parliamentary Committee conducting hearings on the issue. The Executive seemed to grab the issue out of Parliament' s hands. (24)

The culmination of the 2004 appointment process was the appearance by the Minister of Justice before the House Standing Committee on Justice to answer questions about the search and qualifications of his two chosen nominees.

The events leading to the Minister's appearance bear mention. Earlier in the year the Standing Committee had begun to take submissions on Supreme Court appointments. The Prime Minister (Paul Martin) had declared himself committed to re-examining the process as part of his larger concern with a "democratic deficit" in Canadian politics. While the existing process was described as "secretive" and therefore suspicious, in March 2004 the Minister of Justice insisted otherwise:

... I think this point needs to be underscored, that the process is not so much secretive as it is unknown.... [I]n the interests of both transparency and accountability [I would like to] describe to you the [Supreme Court] consultative process or protocol of consultation. I cannot claim [that this process has been followed in every particular case]. I can only undertake to follow it as a protocol by which I will be governed as Minister of Justice. I might add that this is the first time that this protocol or appointments protocol is being released. (25) According to the Minister, the appointment process had two steps. First, candidates from the region of the vacancy were identified from a pool comprising judges, practitioners, and academics. In preparing what is, essentially, a short list, the Minister consulted with various individuals including the chief justices of Canada and of the particular region, Attorneys-General, and senior practitioners. Other groups or individuals might also be consulted. Once a list of candidates was compiled, the candidates were assessed on the basis of professional capacity, personal characteristics, and diversity.

As outlined, the...