On August 2, 2016, Prime Minister Trudeau announced a new process for selecting Supreme Court of Canada justices. The lack of a guarantee in the new process for observing the convention of regional representation on the Court--in this case replacing retiring Justice Thomas Cromwell with another jurist from Atlantic Canada --was the main focus of public concern. That concern may well have been the main reason for suggesting the topic for the Ivan Rand Memorial lecture that I had the honour to give at the University of New Brunswick in October 2016. With the announcement on Monday, October 17 that Prime Minister Trudeau has decided to have Newfoundland & Labrador's Judge Malcolm Rowe appointed, that concern is over--for now. Though I will certainly discuss the regional representation convention later in my talk, I would first like to place the Trudeau government's reform of the selection process in a broad international and Canadian context and then look closely at all features of the new process.
The International Movement for High Court Reform
Over the past half century most of the world's constitutional democracies have recognized the need for some check and balance on the discretion of political heads of government in selecting members of their country's highest constitutional court. This idea has accompanied the adoption of constitutional or semi-constitutional bills of rights in many democracies: the judges who interpret and apply constitutional limits on elected governments should be selected and appointed through a process that is open and transparent and not controlled or dominated by the government that is subject to these judicially enforced limits on its actions. (1)
The most common approach to meeting this concern has been to establish judicial nominating committees to find outstanding candidates and recommend one or more of them for appointment. Final power to determine who will be appointed remains with the political, elected head of government, as is appropriate in a democracy, but the president or prime minister is required to choose a candidate recommended by the nominating commission.
Reforming the judicial selection process in Canada
In Canada interest in limiting the discretion of elected heads of government in the selection of Supreme Court justices came well before the "rights revolution". It initially focussed on the Court's role in interpreting the federal division of powers between governments rather than enforcing citizens' rights against governments. In 1949 when Parliament was debating amendments to the Supreme Court Act to end appeals to the Judicial Committee of the Privy Council, Leon Balcer, a Conservative MP, thought it questionable that the tribunal that would be settling disputes between the two levels of government was so thoroughly a creature of the federal government. (2) Another Quebec MP, Wilfred La Croix, proposed that four Supreme justices (on a bench to be expanded from seven to nine) be nominated by provincial governments. (3)
Later on, when our country plunged into those endless attempts at re-doing our Constitution, proposal after proposal gave the provinces a role in selecting Supreme Court justices. The most recent of these was section 19 of the Charlottetown Accord that would have required the federal government to name judges from lists submitted by the governments of the provinces and territories. Of course, as you know all too well, none of those proposals ever became law. And some of you may be saying to yourself "wasn't that a good thing?" From the time the Supreme Court was established in 1875, right up to the early years of this century, Canada carried on with a very simple unreformed process of filling vacancies on the Supreme Court of Canada. Let me briefly describe the unreformed process.
Although in law the appointment of a Supreme Court justice is made by the Governor-in-Council (i.e., the cabinet), in practice it is the Prime Minister who decides who is to fill a vacancy. The Minister of Justice has always assisted the Prime Minister in making his or her decision by looking for promising candidates in the region of the justice who is leaving the Court. In the modern period, the minister has had the help of a special assistant who performs a function similar to that of a chief scout for a sporting franchise. In the search for good candidates various soundings and consultations would take place--sometimes with the Supreme Court's chief justice, sometimes with provincial attorneys general, usually with provincial governments with which the federal government has friendly political relations and which is in the region in which the vacancy occurred, as well as with groups and individuals who might have strong views or useful information to impart. Even I, a non-lawyer political science professor, was consulted on one occasion. And of course, the government has always received heaps of unsolicited advice on who to appoint or who not to appoint, from groups and individuals. This is known as lobbying.
The central role of the Prime Minister in naming Supreme Court justices differs from the process of filling vacancies in the section 96 provincial courts and the federal courts. These too, by law, are Governor-in-Council appointments, but when the Justice Minister brings names to the cabinet, cabinet ministers can weigh in and argue for or against a proposed appointment especially if it is to a vacancy on a court in their province. Appointments to the Supreme Court, on the other hand, like the selection of Governors General, provincial Lieutenant Governors and Territorial Commissioners, have been considered so important that the Prime Minister must be the key and final decision-maker in selecting the appointee.
It is essential to note that the process I have described was never written into the Supreme Court Act or any other legal instrument. The whole process, including the Prime Minister's role, remains in the informal, so-called "unwritten" part of our constitutional system. Usually we call these rules and practices constitutional conventions. Although, given the variations in the consulting part of the process, calling the process a convention implies more coherence and consistency than has occurred. The one constant of this conventional practice has been the unbridled discretion of the Prime Minister in deciding who will serve on the Supreme Court of Canada.
Reform in the modern ea
The defeat of the Charlottetown Accord in 1992 brought an end to efforts to reform the process of Supreme Court reform by constitutional amendment. But well before then, in the 1980s, there was strong interest in professional and academic organizations in reforming the judicial selection process not only for the Supreme Court but for section 96 courts and the Federal Court. The impetus for this, in part, came from new methods of judicial selection introduced by many provinces and Yukon, that aimed at removing political patronage as the dominant influence on appointments to provincial and territorial courts, the lowest trial courts in the court hierarchy but the courts where most Canadians have their first hand experience with the administration of justice. Again, though there were institutional variations across the jurisdictions, reform involved the introduction of independent nominating bodies that would recommend lists of candidates from which government would be required to choose. The aim was to make professional merit rather than political affiliation the primary criterion of selection. In 1987, the Canadian Bar Association published a report critical of "undue political favouritism" in the federal judicial appointment system and advocated reform along the lines of reform at the provincial level. (4) The Association of Canadian Law Teachers, much earlier than this, championed reforms to change judicial selection from a patronage-ridden system to one based on a search for excellence.
In 1988, the Mulroney government responded to this pressure by introducing Judicial Appointment Advisory Committees to assist it in filling vacancies on section 96 courts, with a committee for each province, and for federal courts (the Canadian Tax Court, the Court Martial Appeal Court and the Federal Court of Canada). (5) But these advisory committees, unlike their provincial counterparts, were not nominating bodies. They were (and still are) screening bodies asked to respond to lists of legally qualified candidates sent to them by the Commissioner of Federal Judicial Affairs. So long as the committees could respond by designating some on their list as "highly recommended" rather than simply "recommended", considerations of merit could enter into the advice they gave government. But when the Harper government reduced the committees' mandate to advising simply whether a candidate was qualified or not qualified, considerations of merit was removed from the federal advisory process. The advisory committee system never applied to the selection of Supreme Court justices.
By the 1990s in the context of appointing Supreme Court of Canada justices, the importance of the Court's role in interpreting the Charter of Rights and Freedoms had supplanted federalism as the focus of concern. The politicians and the public now knew that whomever gets appointed to the Supreme Court of Canada has tremendous power on controversial matters of great interest to the public, such as abortion, gay rights, prostitution, police powers and criminal justice. There was growing interest in a system of selection that was open and known, and not entirely subject to the whims of the Prime Minister.
The first glimmer of reform came in 2004, when--out of the blue--the Martin government announced that Justice Minister Irwin Cotler would appear before an ad hoc committee of...