We have never talked as much or for as long about the judicial appointment process

Prime Minister Stephen Harper came to power on a promise to bring transparency to judicial appointments. The public hearings that preceded Marshall Rothstein’s appointment to the Supreme Court in 2006 seemed a harbinger of making the Court (and perhaps all courts) more open to public scrutiny and closer to the public generally. The hearings were watched breathlessly by many in the legal community, who were so unused to the spectacle of a potential Supreme Court appointee addressing questions from parliamentarians that Peter Hogg, former Osgoode Hall Law School dean and constitutional scholar extraordinaire, was enlisted to ensure that the questions and answers were both in line with Canada’s public law strictures and traditions. In the end, the hearing was a pleasant (if anodyne) way to get to know Rothstein, and it ended early. The outcome was never in doubt and Rothstein was duly appointed shortly thereafter.

The desire to open the process further, however, coincided with the view that judges had become out of touch with “ordinary” Canadians, particularly in areas such as the criminal justice system and sentencing. The other significant shift in the government’s first year in power was its decision to add a nominee to Judicial Advisory Committees from the law enforcement community (other members are chosen by the judiciary, the attorney general, the provincial bar association, the provincial Law Society and the public). These pressures to enhance transparency, on the one hand, and to establish a judiciary more kindred with Conservative priorities, on the other, have shaped judicial appointments ever since. Somewhere along the way, however, the desire for greater transparency faded away, leaving the desire for a more kindred bench a more dominant and contentious theme.

The practice of advisory committees and hearings for Supreme Court judicial appointees has waxed and waned since Rothstein’s appointment. Justice Thomas Cromwell was appointed with no hearing while a federal election and prorogation imbroglio swirled around Ottawa. Advisory committees and hearings seemed the norm after the appointments of Andromache Karakatsanis and Michael Moldaver from Ontario and Richard Wagner from Quebec. But the catastrophic Marc Nadon appointment (culminating in a leak of the Judicial Advisory Committee’s list to the media and the Prime Minister’s spurious allegations that Chief Justice Beverley McLachlin had attempted to influence the appointment) seems to have put an end to this experiment. Justices Clément Gascon, Suzanne Côté and most recently Russell Brown were all appointed with little fanfare and even less of a window into the nature and process of the appointments. As Adam Dodek put it, the current practice is to appoint “by news release.” And in each case, the focus of media reaction seemed to be whether each new “Harper” appointment might make the Court less likely to strike down the next Conservative “tough on crime” law.

The norm of appointing by news release is steadily losing credibility.

Interestingly, even though Prime Minister Harper seems clearly frustrated with the courts and seems clearly willing to use the appointment process in other contexts as a reflection of political values (to wit: the Senate), he has yet to justify a judicial appointment by asserting that a judge shares a Conservative point of view (even where — as in the case of Russell Brown, who had served as an adviser to a conservative legal think tank, the Justice Centre for Constitutional Freedoms — the suggestion of such an affinity is not far-fetched). It is not clear to me why we would think a judicial appointee less qualified simply because the government of the day respects the views expressed by that person while in practice, in teaching or in other posts. Others might respectfully disagree and believe such affinities undermine impartiality. This kind of debate is necessary and worthwhile to have. But the point of departure for this debate would need to be an explanation by the government of why a particular person is appointed. It is hardly eye-opening to learn that an appointee is a “respected jurist” or “a recognized expert.” It is not uncommon for the government to be presented by a Judicial Advisory Committee with over 50 names of qualified applicants. The question is not whether a particular judge is qualified but rather why that qualified judge was chosen over all others. There is always a reason — but one that, for the moment, remains undisclosed and therefore untested. So the questions and speculation continue (magnified across federal judicial appointments throughout provincial and territorial courts). Worries about partisanship seem to give way only to worries that judicial appointments fail to reflect the diversity of a rapidly and vastly changing Canada. This uneasy status quo leaves everyone on edge. The Supreme Court arguably has never been closer to the political fray, just as the federal government arguably has never been subject to so much sustained criticism from the legal community. The public is understandably unnerved.

While many (myself included) have engaged in hand-wringing in these confrontational times, I am coming to think we are witnessing not a decline in the judicial-executive relationship but rather growing pains. We have never talked as much or for as long about the judicial appointment process as in the aftermath of the unprecedented Nadon Supreme Court Act Reference. The norm of appointing by news release is steadily losing credibility.

As we move toward the 150th anniversary of Confederation and the third decade of the Charter of Rights, we are still working out a vocabulary of our own to capture the place of the courts in our constitutional democracy. It must be a vocabulary open to the counter-majoritarian features of the judiciary as a rule-of-law bulwark against the excesses of populism, and it must be open to judicial deference toward parliamentary sovereignty as the hallmark of our Westminster traditions. It must be a vocabulary that does not ignore the political preferences of those in government who appoint, but one that does not accept that those preferences should be the only or primary criteria for appointment. This quintessentially Canadian search for middle ground, and for a language for constructive ambivalence, remains embryonic when it comes to the judiciary. But we may just look back on the volatile Harper years as the time when the judiciary in Canada came of age.