Courting controversy: the House of Commons' Ad Hoc process to review Supreme Court candidates.

AuthorCrandall, Erin

In 2006, Canadians were introduced to a new ad hoc parliamentary process to review Supreme Court candidates prior to their appointment. This article explores how the English-language news media framed this appointment and review process. The authors note the media emphasized conflict surrounding the process over its scrutiny of the candidates themselves and conclude that it remains an open question whether the process of parliamentary vetting actually provided a meaningful educative function for Canadians.

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The Supreme Court's appointment system is the focus of frequent criticism. (1) Its historically executive-driven selection process has been heavily scrutinized, though few contest the high calibre of judges it produces. That said, a consequentialist defence of the appointment process became inadequate long ago. The Court's judges are simply too important and too powerful to be selected through a process that lacks any formal requirement for transparency or accountability on the part of those charged with the job of judicial selection--the prime minister and cabinet. Beginning in 2004, both Liberal and Conservative governments appeared to agree, and in 2006, the Conservatives introduced an ad hoc parliamentary review process where Members of Parliament interviewed Supreme Court candidates prior to their appointment. While arguably a step in the right direction, these changes may very well have been short lived: after only eight Supreme Court nominations, the Conservative government confirmed in December 2014 that the parliamentary review process would no longer be followed.

Many Canadians would have been oblivious to the Supreme Court's new appointment process and its abrupt end if it were not for its strong play in the media. As the public's most prominent source for information on governmental procedure and decision-making, news media had the ability to not only cover, but also frame the discussion surrounding the Supreme Court's appointment process. By analysing the English language media coverage of the eight judges who were nominated to the Supreme Court between 2006 and 2014, this paper considers how the media covered the appointment process, and in particular, how it portrayed the new parliamentary review process to Canadians.

In our analysis of the media coverage of the Court's appointments, we find that the media emphasized conflict surrounding the new process from the very beginning. In fact, the media's coverage of the conflicting views toward the parliamentary review process outweighed its scrutiny of the judicial candidates themselves. The media also heavily covered partisan-based conflict in the form of the Conservative Party's assertive stance against judicial activism, and the NDP's criticisms concerning a dearth of female appointees. Finally, in their coverage of the MPs who made up the parliamentary review committee, the media disproportionally covered the conflict between members over the process itself, almost ignoring their actual views on the candidates. While media's tendency toward the sensational or conflict-driven news is hardly out of step with the larger body of findings around media and politics (2), it remains that Canadians were exposed to the parliamentary review process through the lens of partisan squabbling, and may have come to learn less about the Supreme Court candidates than the objectives of the process would intend.

The next section provides a brief review of the Supreme Court's appointment process, the changes that were introduced beginning in 2004, and the events that eventually led to their retraction in 2014. From there, we elaborate on the findings of our media analysis and conclude by offering thoughts on what can be learned about recent Supreme Court appointments when considered through the lens of the media.

Appointing Supreme Court Justices

In Canada, the formal power to appoint judges to the Supreme Court rests with the governor-in-council. In practice, however, the prime minister in consultation with the minister of justice exercises this prerogative. For a court with final word on both federal and provincial law, this concentration of power in the federal executive has long been criticized by the provinces, and unsurprisingly, was a topic of debate during all recent initiatives to reform Canada's constitution from the Victoria Charter (1971) to the Charlottetown Accord (1992).

With the entrenchment of the Canadian Charter of Rights and Freedoms in 1982, the Court's jurisdiction expanded considerably, transforming it from a court primarily concerned with resolving private disputes to one of public law and rights review. (3) The Supreme Court's growing political importance was accompanied by renewed attention to its appointment process. However, in contrast to earlier initiatives that focused on increased participation by the provinces, these new calls for reform often focused on bringing Parliament into the selection process. The Reform Party (1987-2000) in particular, citing a perceived move toward "judicial activism" by the Court, was a vocal advocate for the vetting of Supreme Court candidates by Parliament. (4)

Such calls for reform gained little traction during the leadership of Liberal Prime Minister Jean Chretien (19932003); but were quickly picked up when new Liberal leader Paul k Martin took office in 2003. While the short tenure of Martin's government (2003-2006) meant that the reforms sought by the Liberals were not fully implemented, the initiative to reform the Supreme Court's appointment process continued under the Conservative Party when it formed government in January 2006. (5)

These reforms to the appointment process featured two additions of particular note: (1) upon a vacancy on the Court, a review committee composed of Members of Parliament would now be convened and asked to review a government list of judicial candidates (five to eight names), which the committee would then narrow to a shortlist (three names); (6) and (2) an ad hoc committee composed of MPs mandated to publicly interview the government's proposed Supreme Court candidate prior to his or her appointment. (7) In contrast, prior to 2004 all components of the selection...

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