On October 17, 2016 Prime Minister Trudeau nominated Justice Malcolm Rowe for appointment to the Supreme Court of Canada. Justice Rowe was a trial judge in Newfoundland and Labrador for two years before being appointed to the Court of Appeal of Newfoundland and Labrador in 2001.
The first section of this article describes the recent changes to the Supreme Court appointment process, as Justice Rowe is the first nomination under the new process. The second section reviews Justice Rowe's application for the position. The third discusses the public hearing, which I attended in Ottawa on 25 October 2016.
The Appointment Process for Supreme Court Justices
The Supreme Court Act, RSC 1985, c S-26, s 4(2) gives the power to appoint Supreme Court justices to the Governor-in-Council but does not describe any process for how to do so. Prior to 2004, any consultation that took place was confidential and informal. A new process was adopted by the Liberal government in 2004 that was ad hoc and quickly organized. The 2004 committee had only one day's notice as to who the two nominees were before speaking to them, and no part in the selection process. This process resulted in the appointment of Justices Abella and Charron to the Supreme Court.
The 2005 committee--also struck by the Liberals--participated in the selection process by narrowing the short list of six names (chosen by the Minister) down to three names. The committee included representatives of each political party. The Liberals were defeated in an election before completing the process and the Conservatives completed the nomination process. This was the first year that there was a public interview process between parliamentarians and the nominee, and it led to the appointment of Justice Rothstein in 2006. In 2008 the Conservatives were in power, and a vacancy occurred during an election, so no selection process or hearing was applied when Justice Cromwell was appointed. The process has been inconsistent in recent years--both Justice Gascon and Justice Cote were appointed in 2014 without any public hearings and the same was true of Justice Brown's appointment in 2015.
The new process was announced August 2nd, 2016. First, an independent advisory board was established. The Prime Minister appointed The Right Honourable Kim Campbell as chairperson and two other members to the board (with two of the Prime Minister's nominees being non-lawyers). Four independent professional organizations: the Canadian Judicial Council; the Canadian Bar Association; the Federation of Law Societies of Canada; and the Council of Canadian Law Deans were invited to nominate a member each. There was a notable effort to de-politicize the advisory board. Unlike previous committees used to select...