Comment Justin Trudeau s’y prendra-t-il pour choisir le ou la prochaine juge en chef de la Cour suprême du Canada ?

Sometime in the next three years — not later than her mandatory retirement date of September 7, 2018 – Chief Justice Beverley McLachlin will step down from the Supreme Court, and it will be Prime Minister Justin Trudeau’s duty to name her successor. This is not a duty that arises very often – McLachlin herself was appointed in the first week of this new century, several prime ministers ago – but this infrequency emphasizes that duty’s importance rather than diminishing it. The chief justice matters because the Supreme Court matters, and this is particularly true now that the Supreme Court has established itself as a major national actor in this the age of the Charter.

As the standard phrase has it, the chief justice is the “first among equals,” and we can acknowledge the special importance of the “first” without taking anything away from Chief Justice McLachlin’s eight “equals.” There is a profound symbolic importance attached to the office, because the chief justice speaks not only for the Supreme Court but also for the Canadian judiciary as a whole — the title is not “chief justice of the Supreme Court” but rather “chief justice of Canada.” This infrequent but extremely important appointment must therefore be made in a way that best serves the institution, by both reflecting and reinforcing the principle of judicial independence.

Remarkably, however, the law is all but silent on the question. The Supreme Court Act provides little guidance. Section 4 (1) says,“The Court shall consist of a chief justice to be called the Chief Justice of Canada, and eight puisne judges,” and section 4 (2) adds, “The judges shall be appointed by the Governor in Council by letters patent under the Great Seal.” This really is all that there is; as guidelines and regulations go, it is very much on the thin side.

The only real guidance is a general sense of tradition that constrains the prime minister’s considerable formal discretion. A prime minister could, for example, name a chief justice who is not currently on the court — the standard American practice — but this has not happened in Canada in more than a hundred years and should, therefore, probably not be treated as a serious option.

Various people have identified different traditions. Peter Hogg, in his classic constitutional law textbook, suggests that there is a tradition of alternation in office between Quebec and non-Quebec justices, which would mean that the next chief justice after British Columbia’s McLachlin should be from Quebec. This notion of alternation is very much a recent idea; there is no trace of it in the earlier literature on the Court, nor has it been mentioned in any official explanations for, or any academic or professional reactions to, the naming of previous chief justices. Had there been a solid tradition of alternation, Brian Dickson could never have become chief justice; the honour of replacing Bora Laskin should have belonged to the senior Quebec justice, Jean Beetz. But in fact the naming of Dickson generated no sense of public disappointment or professional concern about the violation of this alleged tradition, either in Quebec or more widely.

Alternatively, there is a tradition of more solid historical standing, that being the principle of seniority – the longest serving sitting justice becomes the new chief justice. As a rule of thumb, this would have successfully predicted 14 of the Supreme Court’s 17 chief justices, and several prime ministers have alluded to it as they made those appointments. This has the interesting and desirable side effect that it almost always involves appointing as chief justice someone who was initially appointed by a previous prime minister. On the one recent occasion when seniority was put aside — when Laskin became chief justice in 1973 — there was a considerable amount of public and professional controversy and expressions of concern about how Prime Minister Trudeau (père) was manipulating the Court such that it interfered with its independence. Dissatisfaction like that is a strong indication of a violated tradition.

But this controversial episode illustrates an important point: the advantage of a solid tradition is that it precludes prime ministerial discretion, because under all but the most exceptional of circumstances, it reduces that discretion to simply announcing how the tradition has played out in the current circumstances. This honours the principle of judicial independence by avoiding even the appearance — let alone the reality – of a prime minister using the appointment power to steer the Court and thereby impose his or her own agenda and priorities (which the Laskin appointment clearly did). The problem with having two competing traditions, both vaguely understood but neither carrying any official imprint, is that it allows a prime minister to choose without admitting doing so: in 2018 Justin Trudeau could invoke simple seniority and say, “it had to be Cromwell,” or he could acknowledge alternation to say “it had to be Wagner.” Tradition constrains discretion, but competing traditions unfetter it.

Our new Prime Minister could do the country a service by clearly indicating what tradition he is invoking, where it comes from, what purposes it serves and how it has directly dictated the immediate result. This would not settle the matter as definitively as would a constitutional or statutory amendment, but it is through this sort of action and this kind of official pronouncement that traditions gradually become more firmly established and therefore more “constitution-like.” Abjuring discretion today in a way that makes its exercise even less legitimate tomorrow would powerfully reinforce the Court’s institutional independence.

Of course, there is a downside to following a firm tradition, whichever of the two should prevail, and that is the fact that it amounts to a simple lottery won by the lucky ticket-holder, with “luck” being the key word. If prime ministers cannot pick and choose among the justices to promote their own preferences and priorities, then they cannot do so because the tradition-directed choice may not result in an optimal outcome. The tradition might give us a maverick rather than a team player, a cranky solo dissenter rather than a persuasively collegial leader, or someone whose positive qualities do not include the managerial skill mix that the position now demands. More lurid scenarios are unlikely but not impossible: an earlier Canadian example of passing over the most senior judge allegedly involved a serious drinking problem. So perhaps we could encourage the new Prime Minister to come up with a less mechanical — but still discretion-constraining – mechanism for selecting a new chief justice.

Academic experience suggests one possible process – oversimplifying slightly, the chair of a university department is normally selected primarily by the members of that department. For three reasons, these are the best placed to make the choice: first, they know from their own experience what it is that their leader has to be able to do well; second, they know from personal interactions exactly what the strengths and weaknesses of their various colleagues might be; and third, they have to live with the consequences of a suboptimal choice. They have both the knowledge and the incentive to make the best choice. The judicial counterpart would be for the eight current justices to make a recommendation to the prime minister as to which of their number should become the new chief justice. Although this would involve a choice with an element of discretion, it would in no way violate judicial independence or compromise the separation of the judiciary from the political executive. There is the risk of possible bitterness from a losing candidate — the “lottery” has the powerful advantage of precluding any such feeling — but it is gratuitously insulting to suggest that the professionals on the Court could not cope with this.

A little further outside the box – why not call on something more arms-length, like the Canadian Judicial Council? This body includes the chief justices and the associate chief justices of all the federally appointed courts in Canada, to a total of 39 members; if we chose to limit this to a committee of the chief justices alone, that committee would have 24 members. These individuals have a high degree of professional familiarity with the duties and the performance of the sitting judges of the Supreme Court, and their one-step removal from the Court itself ensures a degree of objectivity. Again, we would have the advantage of an informed and professionally grounded recommendation from among the available alternatives, in a way that would not and could not present even the appearance of infringing upon judicial independence.

To push things a step further: why not appoint a chief justice for a specific limited term? Under the current understanding, appointment to the chief justiceship lasts until retirement; one does not “return to the ranks” after serving as chief. But why is this so? Only a decade or so ago, we would have said the same thing about the chief judges of the various provincial courts in Canada, but today almost all of them are appointed for definite terms (of five to seven years, depending on the province), and many are barred from serving consecutive terms. Several chief judges have in fact returned to the ranks, a consideration that presumably makes them more reluctant to exhibit heavy-handed leadership and more hesitant about seeking to augment the powers of their own office. In terms of the classically opaque description — “first among equals” — this tilts the balance away from the “first” and toward the “equals,” but there is no reason to assume that the new dynamic would necessarily be dysfunctional. Assuming she serves until mandatory retirement, McLachlin will have served as Chief Justice for 18 years and eight months, the longest period of such service (by a full five years) in the history of the institution. This is a truly remarkable personal achievement, but one can still wonder if such long terms best serve the institution.

Constitutional and statutory silence notwithstanding, there is some reason to wonder how wide Trudeau’s range of options might actually be. Just recently (in 2014, in the Nadon case and the Senate Reform Reference) the Supreme Court enunciated a new concept of “constitutional architecture” that further constrains the text of the constitutional amending formulae, and this may have implications for the chief justiceship. Clarifying traditional practices would not stray across this constitutional boundary; quite the contrary, because nothing could be more consistent with established practices and legitimate expectations. Seeking advice from an appropriately constituted body such as the Court itself, or perhaps the Canadian Judicial Council, would not seem to create problems either, so long as that advice was not legally binding. After all, we already routinely do something of the sort for almost all judicial appointments in this country. On the other hand, the suggestion of limited terms might well be a bridge too far, something that academics can speculate about, but politicians may not be able to attempt without risk.

Whether it is a matter of clarifying tradition or of finding an appropriate advice-giving body, the appointment of a new chief justice presents an unusual opportunity for enhancing the status of the Supreme Court as an independent institution. Given that the naming of Laskin by Trudeau père was the most controversial appointment of a chief justice in the last century, it would bring things elegantly full circle for Trudeau fils to establish (finally) a more transparent arms-length process, reinforcing an office that is now so important for both symbolic and practical reasons.