The Supreme Court appointment process: chronology, context and reform.

AuthorCotler, Irwin
PositionCanada

INTRODUCTION

If asked about my priorities when first appointed Minister of Justice in 2003, I would not have included judicial appointments amongst them; however, I learned to appreciate that this is a critical part of the administration of justice in Canada, if not in any country. This is a legacy issue, and it will live on long after those who have the temporary stewardship of this position are no longer there. If the act of appointing judges is a priority, the process of appointing them is no less so. Indeed, the integrity and fairness of the process is not unrelated to the excellence and independence of the judiciary.

Judicial appointees--and the appointments process--are of crucial importance to our country. The Supreme Court, as the highest appellate court and final arbiter for the resolution of legal disputes is at the pinnacle of our court system, and is both a fundamental pillar of our constitutional democracy and the guardian of the Constitution. It is vested with the responsibility for intervening in the case of a constitutional trespass, either when governments exceed their jurisdiction--in the context of federal-provincial relations--or when they violate rights protected under the Canadian Charter of Rights and Freedoms. In other words, our Constitution frames both the distribution of governmental power between the federal government and the provinces, otherwise known as legal federalism or the "powers process", as well as the limits on the exercise of governmental power, whether federal or provincial, otherwise known as human rights or the "rights process".

The witness testimony before the Parliamentary Standing Committee on Justice and Human Rights examining the judicial appointments process determined that the Supreme Court exercised these responsibilities in an exemplary fashion and that its excellence resonated beyond Canada's borders. (1) Our highest court is respected across the country and around the world as a model of what a vital, modern, and independent judicial institution should be. For example, representatives of the Quebec and Ontario bar testified that the quality of judges on the Supreme Court is "impeccable". (2) Constitutional and legal scholars emphasized in their testimony before the Committee that courts from diverse jurisdictions continually cite rulings from the Canadian Supreme Court. Commentators concurred that it was difficult to discern an "ideological" or "political" predilection in the Court's decision-making. (3) I was always reminded of this when, as Minster of Justice or academic, I went to international scholarly conferences where the Supreme Court of Canada was cited as an international model. One might have asked, therefore, that if the excellence of the Court is not unrelated to the appointments process, why reforman appointments process that has produced such excellent appointees? To use the proverbial vernacular, "if ain't broke, don't fix it".

A confluence of several factors animated the impetus for reform. First, there was the transformative impact of the Charter, where Canada moved from being a Parliamentary democracy to being a constitutional democracy; where the courts moved from being the arbiters of legal federalism in inter-jurisdictional disputes to being the guarantors of constitutionally protected rights; and where individuals and groups were no longer passive bystanders to legal federalism, but were now right-sholders and rights-claimants who could petition government for redress of grievance.

Second, as a corollary, the Supreme Court of Canada assumed a central role in this constitutional revolution, importing into Canadian discourse that which U.S. constitutional scholar Alexander Bickel called the "anti-majoritarian paradox", where unelected, unrepresentative, and unaccountable judges were usurping the decision-making process. (4)

Third, there was the perception of an "activist Court" propagating "liberal values", which incrementally began to morph into a critique of a Liberal court propagating Liberal values. (5) Then opposition justice critic Vic Toews reflected this in his words: "this Liberal government has allowed judges to become the most powerful force in setting social policy in Canada. Whether it is by allowing convicted [murderers] to vote or by changing fundamental institutions like marriage, this government has substituted the supremacy of an elected Parliament with unelected judges." (6)

Fourth, the dynamic of judicial decision-making intruding upon, if not overtaking, policy decisions that ought to be made by Parliament also motivated Parliament to inquire into the appointments process underpinning those judicial decisions.

Fifth, the purported politicization of the Supreme Court by a fractious minority Parliament was further exacerbated by allegations in the Gomery Commission hearings that appointees to the Federal Courts (the allegation did not extend to the Supreme Court of Canada) were Liberal appointees, such that the fallout of the Gomery Commission was extended to the judicial appointments process. Finally, there was the perceived anomaly of the executive--effectively the Prime Minister--making appointments to the Supreme Court alone, without any Parliamentary input or accountability. Accordingly, and in light of the foregoing, shortly after my appointment as Justice Minister it became apparent to me that not only was the Supreme Court appointments process in need of reform, but the very constitutional framework which underpinned the process itself had to be explained and understood.

With the foregoing in mind, this article will be organized around five themes. First, I will discuss the chronology of developments that led to the consideration of a reform proposal--the roadmap to reform. Second, I will outline the pre-reform constitutional framework and consultative process, particularly as set forth in my submission to the Parliamentary Committee. Third, I will discuss the Parliamentary Committee's report itself, including the proposal for an interim reform process. Fourth, I will summarize the interim appointments process that resulted in the nominations of Justices Abella and Charron. Finally, I will summarize the comprehensive reform proposal that presaged the appointment of Justice Rothstein and now constitutes the basic appointment process to the Supreme Court of Canada.

  1. THE ROAD TO REFORM

    On 12 December 2003, Prime Minister Paul Martin's new Liberal government was sworn into office and I was appointed Minister of Justice. That same day, the Prime Minister announced--and it is a dramatic representation of the priority that he attached both to the judicial appointments process and to its democratization--that the government would "specifically consult the Standing Committee on Justice and Human Rights on how best to implement prior review of appointments of Supreme Court of Canada judges." (7) Indeed, in his first discussion with me on that day, the Prime Minister emphasized the importance he ascribed to the reform of the judicial appointments process and Parliament's role in that reform. On 4 February 2004, the then Liberal government reaffirmed this commitment in its Action Plan for Democratic Reform--again reflecting the importance that the Prime Minister and government attached to the reform of the appointments process. (8)

    On 20 February 2004, Justice Arbour announced that she would be leaving the Supreme Court in June 2004 to become the United Nations High Commissioner for Human Rights. The same day, Prime Minister Paul Martin announced that the government would decide on the vacancy, but that MPs would be involved in the selection process. Shortly thereafter, a discussion ensued as to whether there would be an interim appointments process to fill Justice Arbour's vacant seat--what was referred to as a "one-off procedure"--or whether a permanent appointments process would be developed before her departure.

    In a speech before the Quebec Chamber of Commerce, Prime Minister Paul Martin reiterated yet again the need for a new process of Supreme Court appointments as part of a larger project of democratic reform, saying, "[w]e want to give Parliamentarians the right to review ... appointments to the Supreme Court of Canada." (9) Then, on 19 March 2004, I received a call from then Supreme Court Chief Justice Frank Iacobucci. Justice Iacobucci advised me that he had decided to retire from the Supreme Court for family reasons. As he put it, "Nancy [his wife] has always been there for me all these years, it is time for me to now be there for her and the family and our grandchildren." It was a very moving and emotional conversation with someone who had been a long-time colleague and friend. Later, at his retirement ceremony, I said "[w]e have, the Canadian people, have lost a giant of a Supreme Court judge, a giant of a man." (10)

    The unexpected and dramatic announcements from two sitting Supreme Court Justices that they were both retiring in June 2004--coinciding with a decision of the Parliamentary Standing Committee on 23 March 2004 undertake an inquiry into the appointments process itself--accentuated and accelerated the need for establishing a reformed appointments process as soon as possible. (11) These developments also coincided with my projected appearance before the Parliamentary Committee on 30 March 2004.

  2. THE PRE-REFORM JUDICIAL APPOINTMENTS PROCESS: THE CONSTITUTIONAL AND CONSULTATIVE FRAMEWORK AS THE CONTEXTUAL BASIS FOR PROSPECTIVE REFORM

    The pre-reform appointments process has traditionally been organized around two central considerations. First, respect for the constitutional framework governing the appointments process and second, the development of a comprehensive consultative process to give expression to--or to implement--this constitutional responsibility. The framework anchored in the Supreme Court Act, vests the constitutional authority for Supreme Court appointments with the...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT