Judicial appointment, democratic aspirations, and the culture of accountability.

• Author: Sossin, Lorne

So far as the judicial function is capable of it, courts of justice must work in a reality of freedom from factors that are foreign to their ministrations. There must be a hovering awareness of ultimate principles and ends. There must be a steadfast adherence to the intellectual convictions of our jurisprudence. Only in that manner can they execute their office as an untrammeled, independent, and constituent organ of government, accountable only to the public through its great councils.

Ivan Rand (1)

INTRODUCTION

When Ivan Cleveland Rand was appointed to the Supreme Court of Canada on 22 April 1943, the country knew little about him, his suitability for the position, or the Supreme Court on which he was about to play such a pivotal and transformative role. In 1959, as the author of the most significant set of reasons in the Supreme Court's Roncarelli v. Duplessis, Rand J. set the stage for a constitutional culture organized around constraining the executive branch from unfettered authority. (2) Roncarelli stood, and stands, for the proposition that no executive authority in Canada is unlimited. The Canadian Bill of Rights, the Quebec Charter of Human Rights and Freedoms, and the Charter of Rights and Freedoms, which followed in Roncarelli' s wake, extended that culture of constraint to cover all governmental authority (including legislative authority).

Roncarelli, therefore, reflects the "Rand Paradox". The judge most credited with subjecting executive authority to the rule of law was himself appointed to the Supreme Court in an exercise of unchecked and unreviewable executive authority--that is, the authority of the federal executive to appoint judges to the Supreme Court, and to all federally appointed trial and appellate courts. The rule of law in Canada, in other words, is supervised by judges appointed according to a process that effectively lies beyond the reach of the rule of law. For many, this is a paradox we can and should live with. Judicial appointments may be closed, opaque, and without safeguards against arbitrary selections, but the process works generally well, and has produced a cohort of independent-minded judges (like Ivan Rand) who have embraced rights protection, and exhibit through their decisions little, if any, correlation to the partisan ideologies of the governments who appointed them. (3) As a result, for many, fixing judicial appointments truly is a solution in search of a problem.

This is an understandable view, but misses the point. The system of appointing judges in Canada should continue evolving because it is out of step with Canada's legal and political culture, not because the judges we have are unworthy. (4)

Our current appointments system is out of step with legal culture because it is inconsistent with the independence of the judiciary. The whole edifice of judicial independence, as elaborated in cases such as Valente and the Provincial Judges Remuneration Reference, is to insulate judges from improper influence from the government of the day. (5) For this reason, the Supreme Court identified areas where objective safeguards would have to be in place, such as security of tenure, financial independence and administrative independence. What good is security of tenure, financial independence, or administrative independence, however, if judicial candidates are perceived as beholden to the government of the day because of how they are selected? If currying partisan favour is understood as a prerequisite for judicial appointment, then the independence of judges is tainted irrespective of what protection might be afforded, ex post, to those who pass through the political gauntlet.

Our current appointments system is out of step with political culture primarily because it lacks transparency, and provides for no oversight. In a post-Gomery, post-Arar era, accountability has become the sine qua non of Canadian politics, and no amount of hearings after the fact, or advisory committees beforehand, can alter the reality that the federal and provincial governments choose judges based largely on undisclosed criteria in largely unknown circumstances. As one study put it, judicial appointments in Canada suffer from a "democratic deficit". (6)

In this study, I am interested less with the democratic deficits of the appointment process and more with how the appointments process reflects (or fails to reflect) our democratic aspirations. The judges who governments appoint, and the way in which they are appointed, embody a set of values about democracy. As those democratic values change, this argument suggests, so will the appointment process and the judges who come through it.

At the time of Confederation, the democratic aspirations were built around Parliamentary supremacy, the legitimacy of a trusted executive branchm, and faith in elites such as the legal profession. Today, the authority of Parliament has receded in the face of judicial supervision under the Charter on the one hand and the concentration of power in the executive on the other hand. As a result, the notion of the executive branch having a free hand to pursue its preferences has been under siege. The more powerful and concentrated the executive becomes (even the federal Cabinet now seems little more than the mouthpiece for the Prime Minister's Office), the more anxious the public becomes about how that power should be contained and constrained. The Reports of the Public Inquiries in Arar and Gomery resonate with the call for greater oversight, justification, and transparency in relation to executive authority. This culture of accountability has coincided with an erosion of trust in elites generally and the legal profession in particular. (7)

In this study, I highlight the misalignment between the present system of judicial appointments and core values of judicial independence and accountability. I suggest judicial appointments will likely be caught up in this evolving legal culture of constraint and the evolving political culture of accountability as well. Judicial appointments, in other words, will and must change in order to continue to reflect our democratic aspirations.

The analysis below is divided into two parts. In the first part, I chart the evolution of judicial appointments in Canada and the implications of recent efforts at reform. In the second part, I discuss how the legal culture surrounding judicial independence and the political culture surrounding transparency and accountability are likely to drive further reforms in judicial appointments. The result, I believe somewhat optimistically, will be both to constrain the executive in its exercise of the appointment power, and to enhance the role of the judge in Canadian democracy.

PART ONE: THE EVOLUTION OF JUDICIAL APPOINTMENTS IN CANADA

The recent evolution of judicial appointments in Canada reveals some puzzling trends. The system of judicial appointments is becoming at once more transparent and more political. In other words, it appears both to be evolving in more democracy-enhancing ways and, simultaneously, in ways that threaten the democratic role for the judiciary as a counter-majoritarian, rights-protecting body.

While much attention has been focused on the fluid evolution of Supreme Court appointments, the more varied evolution of provincially appointed judges and the subtle evolution of federally appointed lower court judges receives less scrutiny. Below, in cursory fashion, I set out the present system of judicial appointments in Canada. (8) The framework within which I view the present system, as stated above, is one of democratic aspirations. The question, therefore, is to what extent the evolution of judicial appointments has tracked the evolution of Canada's democratic aspirations (and to what extent it ought to).

1. The Constitutional, Statutory, and Administrative Context for Federal Judicial Appointments

   To understand judicial appointments in Canada, it is necessary to see the constitutional, statutory, and administrative context for those appointments, and how they interact. For example, the constitutional context dictates two different streams of appointments--one stream federally appointed and one stream provincially appointed. Each level of government has provided for an appointment process through statute, and each statute has given rise to particular administrative practices. Those statutes and practices, however, must also conform to the broader constitutional principles of the rule of law and judicial independence. These contexts are sketched briefly below.

   (A) The Constitutional Context

   Under the Constitution Act, 1867, judges of s. 96 and s. 101 courts are appointed by the Governor-General in Council (i.e. the federal Cabinet), on the recommendation of the Minister of Justice (save for appointments to the Supreme Court of Canada and of Chief Justices, which are made on the recommendation of the Prime Minister). Together, these judges will be referred to as "federally appointed judges".

   Section 92(14) of the Constitution Act, 1867, allocates to the provinces the administration of justice. The provinces have used this legislative authority to enact legislation that provides for the appointment of judges to provincial trial courts (which exercise jurisdiction primarily in criminal and family matters). These judges will be referred to as "provincially appointed judges".

   The Constitution Act, 1867, does not speak to the content of the judicial appointments process, or to the criteria for judicial selection. The Charter of Rights and Freedoms is also silent on the appointments process, although s. 11 of the Charter states that "any person charged with an offence has the right ... (d) to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal".

   The constitutional backdrop for judicial appointments involves not just those aspects of the text of the Constitution...