Federal Judicial Appointments

Chambers of the Supreme Court of Canada

Updates

20 September 2016—On August 2, 2016, the newly elected Liberal federal government announced a new process for judicial appointments to the Supreme Court of Canada. The government established a seven-person Independent Advisory Board for Supreme Court of Canada Judicial Appointments, which is comprised of a retired judge nominated by the Canadian Judicial Council, two lawyers (one nominated by the Canadian Bar Association and another by the Federation of Law Societies of Canada), and a legal scholar nominated by the Council of Canadian Law Deans. The remaining three members of the advisory board were nominated by the Minister of Justice – two of these members are not members of the legal profession. Former Conservative Prime Minister Kim Campbell was designated as the Advisory Board’s chairperson.

An open application process was also established for the position on the Court that will become available with the resignation of Justice Cromwell on September 1, 2016. This is unprecedented as applications to serve on the court have never been so widely available. In another unprecedented move, the Advisory Committee will make its selection criteria publicly available. Until this point, the criteria for Supreme Court justice selection has always been private.

The federal government has also directed the advisory board to help ensure the Supreme Court is gender-balanced and otherwise “reflects the diversity of members of Canadian society”.

Once the advisory board has identified three to five potential candidates, the Minister of Justice will consult on the shortlist of candidates with the Chief Justice of Canada, relevant provincial and territorial attorneys general, relevant cabinet ministers, opposition Justice Critics, as well as members of the House of Commons Standing Committee on Justice and Human Rights, and the Standing Senate Committee on Legal and Constitutional Affairs. Once this consultation process has taken place, the Minister of Justice will prepare her recommendations to the Prime Minister.

Once the Prime Minister selects a nominee, the Minister of Justice and Advisory Board chairperson must appear before the House of Commons Standing Committee on Justice and Human Rights, the Standing Committee on Legal and Constitutional Affairs, and representatives from the Bloc Québécois and the Green Party.

Emmett Macfarlane, an assistant professor of political science at the University of Waterloo who specializes in the Supreme Court of Canada, has said he likes the added transparency of the process as well as the fact that it contains various methods for screening candidates.

While Eugene Meehan, a lawyer at Supreme Advocacy LLP and former executive legal officer at the Supreme Court, explained “I don’t see it as a drastic change but instead a lifting of the veil on the process which has been used — in various iterations — to consistently ensure our top court has a strong bench,” he added. Meehan also said, “The bilingual requirement is welcome, but we may see some challenges as the eligibility requirements are constitutionally protected.”

What Happened

An independent and impartial judiciary is a cornerstone of Canada’s constitutional democracy. However, the past decade has seen trends towards political judicial appointments and opaque appointments processes that threaten to undermine the judiciary’s role as protector of the rule of law and facilitator of a robust and diverse Canadian democracy.

Through changes to the appointments process, the federal government has eroded the effectiveness of mechanisms designed to ensure transparency and accountability in the selection of judges. As a result, there has been a change in the character of the Canadian judiciary. Some recent judicial appointments have been labelled partisan, and are seen as an attempt to bolster the federal government’s tough-on-crime and anti-Charter of Rights and Freedoms political agenda. Equally troubling, recent appointments have impeded the development of a Canadian judiciary that reflects the diversity within Canadian society.

These deeply problematic developments also need to be understood in the context of the Conservative federal government’s attempts to silence the legal community in Canada, through the reduction of funding to the Department of Justice, as well as legal research and advocacy organizations; the elimination of the equality section of the Court Challenges Program; and its public criticism of the Supreme Court of Canada’s Chief Justice.


Background: the role of judiciary in Canada’s constitutional democracy<

Canada is a constitutional democracy. This means its constitution is its “supreme law”: it delineates, balances, and legitimates government action and the laws the government enacts. The judiciary is the guardian of this supreme law. It has a crucial role in protecting and implementing constitutional rights and powers.

When applying and interpreting Canada’s constitution, judges are bound by legal rules and the evidence before them. At the same time, they are expected to have an appropriate measure of judicial deference to the representative role and unique expertise of elected government. This has led some of Canada’s leading constitutional scholars to describe constitutional law as a product of a dynamic exchange between government and an independent judiciary. This ongoing dialogue influences the character of Canadian democracy.

In Canada’s constitutional democracy, the judiciary plays three critical roles: 

  1. Protector of the rule of law;
  2. Legal interpreter, ensuring the law develops to meet contemporary concerns; and
  3. An independent balance on majoritarian power.

In order for the judiciary to perform these roles, it is imperative that judges remain independent.

1) Protectors of the rule of law

Protecting the rule of law means ensuring that no person or institution (including the government) is immune from having to comply with Canadian law. The rule of law is a “foundational element of Canadian constitutional democracy”, “it signifies that all elements of Canadian society - public and private, individual and institutional - are subject to and governed by known legal rules”.1 By protecting the rule of law, the judiciary helps to ensure that government power is exercised properly and fairly.

2) Legal interpretation and the constitutional “living tree”

Canadian judges must apply existing laws to emerging issues in Canadian society. As such, the judiciary shares, with parliament, responsibility for ensuring that Canada’s laws remain relevant to contemporary circumstances. To achieve this, Canada’s courts treat the constitution as a “living tree,” capable of being interpreted and applied flexibly to accommodate developments in Canadian society. For example, in 1929, this doctrine of constitutional interpretation permitted Canada’s highest court to hold that women were included in the legal definition of “persons,” thus extending the vote to women in Canada.

The living tree doctrine of constitutional interpretation can be contrasted with a doctrine often described as “originalism”. Proponents of originalism argue that constitutional interpretation should be done by reference to what the drafters of the constitution intended, at the time the constitution was drafted. Strict adherence to originalism precludes judicial decisions that keep pace with and recognize developments in society and in community attitudes. For example, applying a purely originalist interpretation, the legalization of same-sex marriage would not be possible.

3) Balance on government majoritarian power

Judges, who are not elected, can make decisions unhindered by the influence of politics. In addition, Canada’s Constitution and Charter both operate as checks on the exercise of majoritarian power. By applying these instruments, the judiciary plays a critical role in protecting minorities from the power of elected parliamentary majorities.2 Important cases concerning same sex-marriage equality, the recognition of the rights of Indigenous peoples in Canada, assisted suicide, and the legality of sex work, have required the judiciary to review and amend government laws in order to protect minorities from discrimination.

Judicial Independence

The judiciary cannot perform these important roles without being independent. According to the Chief Justice of Canada:

“judges must be independent of other social institutions, including the legislative and executive branches of government. Judges cannot discharge their interpretative role impartially if they are captives of a particular constituency, be it a corporation, an interest group, a political party or the elected representatives of Parliament. The concept of judicial independence, fundamental to our constitution, rests on this essential separation between judges and politicians...”.

The federal government, between 2006 and 2015, took significant steps to undermine these important tenets of Canada’s constitutional democracy. The government changed the appointment process in ways that undermine its impartiality, reduce accountability and allow the federal government to wield greater influence over who is appointed. Moreover, these changes have paved the way for appointments that reflected the government’s political agenda, and failed to address the lack of diversity on the Canadian bench.

Eroding the judiciary’s independence and power

While political patronage and party affiliation of judicial appointments are not new in Canada, the past decade has seen increasing political interference with the judicial appointments process.

In 2003, while leader of the opposition, Stephen Harper used originalist arguments to oppose marriage equality. He asserted that as the Charter’s framers had not intended the equality clause to protect the LGBTQ+ community and that such a protection should not be extended to that community. Around this time, he also hired Ian Brodie, a major proponent of originalism, as his Assistant Chief of Staff. As Prime Minister, Harper went on to appoint several judges who favour originalism as a method of constitutional interpretation.

From the start of its first term in 2006, the new Conservative government amended the judicial appointment process by changing the role and make-up of Judicial Advisory Committees (JAC), thereby ensuring the federal government obtained more influence on these committees. Then, in 2007, Harper made explicit his desire to appoint judges who would support him in his crackdown on crime: “We want to make sure our selection of judges is in keeping with those [safer streets and communities] objectives." This approach was also exemplified by the federal government’s addition of law enforcement representatives on the JACs in 2006.

On 21 March 2014, the Supreme Court of Canada ruled that the federal government’s nominee to the Supreme Court, Marc Nadon, could not take his seat. The constitution requires that an appointee from Quebec be a member of the Quebec Bar, or a Quebec court, but Nadon was neither. He was seen by many as a political appointment, with views partisan to the government, and unqualified to discharge the duties of a Supreme Court justice. The Supreme Court’s decision marked the end of a year long process in which the Prime Minister publicly criticized the judiciary, and vilified the Chief Justice of Canada.

Adam Dodek, a professor of law at the University of Ottawa, noted of the Nadon appointment:

The government system of appointment, which is supposed to be about transparency and accountability for appointments, completely failed in both respects... [the incident] shows that that appointment process is completely broken. It utterly failed, and that has nothing to do with Justice Nadon’s qualities or qualifications as a jurist.

1) Eroding the appointment process

Changes to the federal appointment process: Judicial Advisory Committees

While the controversy surrounding Nadon’s thwarted appointment is recent, changes to the process of judicial appointments started early in the new federal government’s first term. In 2006, the government made changes to the system of JACs, first established by the Mulroney government in 1988 in an effort to "increase transparency in a manner consistent with judicial independence." The "major innovation" of the Mulroney reforms had been that candidates were no longer selected solely by the Minister of Justice, but rather made themselves known to a screening committee through a formal process overseen by the Commission for Federal Judicial Affairs and the JACs.3

JACs were established in each province or territory. In their original iteration, each JAC contained seven representatives: three representatives appointed by the federal Minister of Justice (two of whom were lay representatives), and a representative each from the judiciary, the Attorney-General from the relevant province or territory, the Canadian bar association and that province or territory’s law society. The Minister of Justice appoints committee members in consultation with the Commissioner for Federal Judicial Affairs, "from lists of nominees submitted by certain nominators."4 Judicial candidates were originally assessed against criteria including "professional competence and experience, personal characteristics, social awareness, and the presence of no potential impediments to appointment," before being deemed "highly recommended," "recommended" or "unable to recommend."

In 2004, Irwin Cotler, then Minister of Justice proposed several reforms to the judicial appointment process in order to ensure greater transparency. He proposed extensive and ongoing consultations throughout the processes for identifying and assessing judicial candidates. This consultation would be between the Minister of Justice, Prime Minister, the Chief Justice of the Supreme Court (about the needs of the Court), Attorney Generals of each province, regional Chief Justices, Canadian Bar Association representatives and provincial Law Societies’ representatives. The consultation process would also involve opportunities for members of the public and public organizations to make submissions.5

However, since 2006, the federal government failed to continue this type of consultation process, making the Prime Minister responsible for decisions, and less transparent. The federal government also changed the function and constitution of the JACs in two notably detrimental ways.

First, the federal government removed the "highly recommended" category, leaving only the categories of "recommended" and "unable to recommend." The "highly recommended" category was originally inserted into judicial selection process in 1991 to allow the JACs to better play the advisory role for which they were intended.6 When these 2006 changes were originally introduced, the Canadian Judicial Council criticized the removal of the highly recommended category on the basis that it "raises questions about whether the most qualified individuals will be identified for appointment." Removing the capacity to highly recommend candidates limits the ability of the committee to fulfil any kind of advisory function or to meaningfully distinguish between candidates and to therefore impose any kind of proper check on the government’s decision-making power.7 For example, in 2013-2014, the JAC for the Greater Toronto Area "recommended" nearly half the potential candidates. Sixty-six of the 300 were appointed, which suggests that the JACs provide a limited filter or advice on the merits of any given candidate. Especially when compared with 2005-2006, the last year that the three categories existed, when 76 applicants were "highly recommended."

Hanay Hassan, Chair of the Ontario Judicial Appointments Advisory Committee, has observed, “When you include more people, it gives an attorney-general and cabinet a chance to make a political choice.”

Second, the federal government has changed the constitution of the JACs. In 2006, it added a police representative to the JACs, and took away the vote of the judicial representative. This has been characterised as giving the government a voting majority on the JACs, because the majority of committee members are appointed by the government.

The reforms have ensured the government’s capacity to wield influence over who is appointed, despite the existence of the JACs.

Changes to the federal appointment process: partisan political nominations

There are reports8 that some federal Cabinet ministers have been under pressure to nominate judicial candidates that are likely to be deferential to the federal government, more favourable to originalism rather than “living tree” constitutional interpretation, and whose political ideology is in line with the Conservative government’s.

It has also been reported that, to find the ‘right’ nominee, several cabinet ministers and Conservative Party members have personally met with potential judicial nominees prior to their being nominated. Peter Russell, professor emeritus of political science at the University of Toronto has noted, “the public should be concerned about partisan interviews of prospective candidates for judicial appointment,” because the implication is that “appointments to the highest trial courts and courts of appeal in the province remain open to blatant partisan political favouritism in selecting judges – something most provinces and most countries in the liberal democratic world have reduced or eliminated.”

Abandoning parliamentary hearings for Supreme Court appointments

In 2006, the federal government convened a parliamentary hearing for new appointee Justice Rothstein. However, this would prove to be the only parliamentary hearing for a newly appointed Supreme Court Justice. In 2014, the federal government refused to convene parliamentary committees to review and question two appointments to the Supreme Court of Canada. That year, new apointments Justice Gascon and Justice Côté were not required to appear before Parliament.

The government blamed a leak of the list of candidates for the positions as the reason for not holding any parliamentary hearings. However, critics have doubted the veracity of this explanation. The Globe and Mail interviewed a senior judicial source who noted, the government was “worried about tough questions being asked in public of its choice for the court. When there was a parliamentary selection committee, the opposition parties participated and had a stake in the Prime Minister’s ultimate choice. Now that they are no longer involved in the selection process, the opposition would have more reason to ask critical questions.” Liberal MP Irwin Cotler noted, “It seems to me the government doesn’t want a process at all,” and continued, the “putative [information] leaks” were “certainly not grounds for suspending a judicial appointment process.”

Michelle Hollins, then president of the Canadian Bar Association noted, “We’re moving in the wrong direction in terms of making that process more transparent and understandable, a process that would build confidence in the system.” No parliamentary hearings have been held for any Supreme Court appointees since Justice Rothstein. While these Parliamentary hearings were not part of the selection process, and provided a limited review of the new judicial appointments, members of the legal community hoped they would be expanded and improved rather than removed entirely.

2) Results of these appointments – more partisanship and less representativeness

The existing process for appointments has been described as “out-of-step” with Canada’s “political and legal culture” and as being contrary to critical democratic values such as judicial independence and accountability.9 Concerns about the possibility of partisan appointments and an unrepresentative judiciary have borne fruit. The Conservative federal government has appointed 600 of the 840 judges now sitting. Because judges are permitted to serve until they are 75 years old, these appointments are likely to influence the character of the bench for decades to come.10

Some of those appointed have had long standing ties with the Harper conservative government:

  • Vic Toews, the former federal minister of public safety, who was appointed to the Court of Queen’s Bench in Manitoba in March 2014. Prior to his appointment, Justice Toews served as Minister of Public Safety, where he had been the face of the Conservative government’s tough on crime agenda.
  • Supreme Court Justice Andromache Karakatsanis. Critics of Justice Karakatsanis have suggested that her lengthy time as a senior bureaucrat in a conservative provincial government with strong ties to the Conservative government made her a more favourable appointee.

Others have been appointed, reportedly, because of publically held views that are in keeping with the federal government’s political platform:

  • Justice John Rooke. Justice Rooke was appointed in October 2009 to associate chief on the Alberta Court of Queen’s Bench. It has been suggested this appointment was at least in part a product of lobbying of the government on behalf of Justice Rooke’s. Justice Rooke has subsequently made decisions in line with the federal government’s political positions, most notably finding in favour of the government in his decision to treat Omar Khadr as an adult. This decision was overturned by all three of the Alberta Court of Appeal judges deciding the case.
  • Justice Kevin Philips. Justice Philips was appointed to the Ontario Court of Justice (a provincial court) in April 2011, and promoted to the Ontario Superior Court four months later. His elevation followed his delivery of a judgment regarding a ‘victim surcharge’ where he emphasized the importance of judicial deference to the legislature’s intent.
  • Justice Marc Nadon. Justice Nadon was initially appointed to Supreme Court, although this appointment successfully challenged. He is widely regarded as having views sympathetic to the Conservative government’s.
  • Justice Grant Huscroft. Justice Huscroft was appointed to the Ontario Court of Appeal in December 2013. He is a noted critic of same-sex marriage and adherent of originalism.
  • Justice Bradley Miller. Justice Miller was appointed June 2014. Like Justice Huscroft, Justice Miller is an overt critic of same-sex marriage and adherent of the doctrine originalism. Justice Miller was elevated to the Ontario Court of Appeal after 6 months on the Ontario Superior Court bench, during which time he did not publish a ruling.
  • Justice Russ Brown. Justice Brown was appointed to the Supreme Court of Canada in July 2015. Critics have suggested Russ Brown’s rise to the Supreme Court of Canada after only two years’ experience as a provincial judge is in part due to his conservative political views.

Looking back, it should hardly be surprising that such partisan appointments have occurred. Prime Minister Stephen Harper’s explicit desire to appoint judges who would support his "tough on crime" agenda, and his preference for originalism, foreshadowed these developments. These appointments are also indicative of a move towards a more deferential judiciary, one that is less inclined to thwart the will of a Conservative government.

A lack of diversity on the bench

A more subtle trend is also evident – over the past decade the federal government appears to have a clear preference for appointing judges with certain types of experience, predominantly prosecutors and those with a commercial litigation background. Between April 2012 and May 2014, none of the federal judges appointed are described as having experience in community legal practice, social justice or public interest advocacy or human rights. Similarly, appointees with a background in criminal defence are almost non-existent. Judges with experience acting for individuals, and in particular those from marginalised and disenfranchised communities, are likely to better "understand the social and personal contexts of private citizens who turn to the courts to resolve often deeply personal conflicts."

Underlying this is the sense that lawyers from such backgrounds have liberal agendas, and would not find in favour of the government. Professor David Dyzenhaus recently expressed concern about the trend of appointing lawyers with a narrow set of experience:

“It’s very clear that it’s almost impossible for a judge who comes from the political centre or to the left to be appointed…Which means that the appointment of judges is coming from a very small pool of lawyers. That invariably means people of considerable ability are being passed over. The quality of the bench is going to be lower. It will invariable take its toll on the Canadian legal order."

Also deeply troubling is the persistent lack of diversity in Canada’s judiciary. The Canadian judiciary is overwhelmingly male and white. About one third of Canada’s judiciary is female. Recent appointments have done nothing to address this. Women continue to constitute only one third of all appointments. At the current rate, gender balance will not be achieved until 2035. There is also incredibly limited information about the appointment of racialized minorities, but statistics that do exist show a troubling trend – between April 2012 and May 2014, only 3 out of 107 appointments were visible minorities: two Metis individuals and one South Asian individual.

Professor Rosemary Cairns Way, from the University of Ottawa, argues that “the unrepresentative character of the judiciary demonstrates the appointments process has disproportionately denied opportunities to Indigenous peoples, racialized individuals, persons with disabilities, women, and other members of equality seeking groups,” and that “the institutional character of the bench reflects the ongoing existence of systemic discrimination.” In addition to the moral implications of this fact, the lack of diversity amongst the judiciary leads to poorer outcomes for Canadians: broadening the set of perspectives on the bench leads to greater impartiality in decision-making and increases the chances that an individual litigants life experiences will be accurately understood.

Seeing these changes in a wider context

Stephen Harper was the first Prime Minister to be openly critical of Canada’s Charter of Rights and Freedoms, an animosity that has repeatedly manifested in his political decisions. For example, as previously documented by Voices-Voix, funding cuts to the Department of Justice eroded that department’s ability to assess whether proposed legislation properly complied with the Charter.

In 2012, a senior lawyer in the Department of Justice, Edgar Schmidt, instituted proceedings against the federal government alleging that it was willfully failing to “identify and report on legislation that the department itself considers to be almost certainly illegal and unconstitutional.” Voices-Voix has documented how, following the commencement of these proceedings, Schmidt was suspended without pay, and has subsequently retired from the public service.

The Prime Minister’s public criticism of Chief Justice McLaughlin is also related - it was widely viewed as evidence of the Conservative government’s disregard for Canada’s judiciary and its role in upholding the rule of law.

Relevant Dates

2003: Then-official opposition leader Stephen Harper begins to introduce originalist arguments against same-sex marriage in the House of Commons.

2004: Federal Minister of Justice Irwin Cotler introduces mechanisms in the judicial appointment process to facilitate additional consultation with the legal community and public in an effort to increase transparency.

January 23, 2006: The Conservatives are elected into a minority government.

2006: The federal government makes changes to the JACs that make the process more susceptible to political influence and less transparent.

2006: Justice Rothstein is presented at a hearing before the House of Commons before being sworn to the bench of the Supreme Court of Canada. He is the last judicial appointment to face a parliamentary hearing. 

2014: Controversy erupts over the process that lead to the Prime Minister’s appointment of Justice Nadon to the Supreme Court of Canada, though the Justice’s credentials and ability were not implicated.

2014: House of Commons hearings were abruptly cancelled for Supreme Court appointments Justices Gascon and Côté. No hearings for new justices have been held since.

1 Forward by Beverley McLachlin, CJC in Gerald Gall, The Canadian Legal System, 5ed (Thomson Canada Ltd, 2004).
2 https://www.canlii.org/en/ca/scc/doc/1998/1998canlii793/1998canlii793.html?autocompleteStr=reference%20re%20se&autocompletePos=4
3 Anne McLellan, ‘Foreward’ (2000) 38(3) Alberta Law Review 603, 604.
4 Richard Devlin, A. Wayne MacKay and Natasha Kim, ‘Reducing the Democratic Deficit: Representation, Diversity and the Canadian Judiciary, or Towards a “Triple P” Judiciary’ (2000) 38(3) Alberta Law Review 734, 765.
5 https://bccla.org/our_work/judicial-appointments-to-the-supreme-court-of-canada/
6 Andre S. Miller, ‘The “New” Federal Judicial Appointments Process: The First Ten Years’ (2000) 38(3) University of Alberta Law Review 617.
7 Lorne Sossin, Judicial Appointment, Democratic Aspirations, and the Culture of Accountability (2008) 58 University of New Brunswick Law Review 11, 26.
8 Sean Fine, Stephen Harper’s Courts, The Globe and Mail, July 24, 2015
9 Lorne Sossin, ‘Judicial Appointment, Democratic Aspirations and the Culture of Accountability’ (2008) 58 University of New Brunswick Law Journal, 11 12.
10 This is subject to the judge’s “good behaviour”, however the evidentiary threshold for establishing poor behaviour is very high.

 

Role or Position

An independent and impartial judiciary is a cornerstone of Canada’s constitutional democracy. However, the judiciary’s independence and impartiality has been undermined by the recent trends of political interference in the appointments process, partisan appointments, and the failure to achieve a judiciary that is representative of Canadian society. 

Implications and Consequences

Rule of Law: The judiciary is the ultimate protector of the rule of law in Canada. The appointment of judges who hold views in keeping with the government’s political agenda, long-standing ties to a particular party, or a willingness to defer to Parliament, undermines the judiciary’s capacity to ensure that the government enacts laws that comply with the Canadian constitution and the Charter.

Democracy: The judiciary has an important role to play in the development and protection of Canada’s democracy. It protects the rule of law, the Canadian constitution and the Charter of Rights and Freedoms, the rights and entitlements of minorities from the threat of elected majorities, and facilitates the evolution of laws to meet new social challenges. By infringing on judicial independence, the federal government is curbing the powers of the judiciary to fulfil these important functions, thus undermining democracy.

Transparency: Changes to the makeup and functions of the JACs has increased the government’s influence on these committees and eroded transparency and accountability in the appointments process. Similarly, there remains considerable uncertainty about whether parliamentary committees will be held to assess the appropriateness of future appointments to the Supreme Court of Canada. Without some form of oversight, the process of appointing judges to the Supreme Court of Canada will also remain opaque and lack accountability.  

Image: Watson MacEwen Teramura Architects

Published: 15 December 2015

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