Speaking at a Vancouver conference three years ago, Chief Justice Beverley McLachlin remarked that few principles of our justice system are more poorly understood than judicial independence. Yet, she continued, few principles are more important.
Without judicial independence, justice cannot be impartial. Without judicial independence, judges might be swayed by positions taken by the ruling party in government, or they might side unfairly with the prosecution. Put another way, judicial independence ensures that our judges are independent of political manipulation.
Judicial independence ensures that the courts guard our Constitution and the democratic process. As Chief Justice McLachlin argued, without independent judges we cannot have protection of rights or the rule of law, and without the protection of rights and the rule of law we cannot have democracy. Former chief justice Antonio Lamer argued equally forcefully that independence required depoliticizing relationships between the legislature and the executive on the one hand, and the judiciary on the other. He didn’t deny that court decisions often have political implications. He maintained, however, that the legislature and executive cannot, and cannot appear to, exert political pressure on the judiciary.
Managed properly, the process for appointing judges is an important vehicle for promoting judicial independence. But, like judicial independence, the process for appointing judges is perceived as murky, weighed down by too many cooks, and involving inconsistent consultation. And in this environment, the danger lurks that well-intentioned reformers, in the very act of trying to improve the process, will unwittingly interfere with the judicial independence that the appointment process must protect. The process for appointing judges to the Supreme Court of Canada is now under particularly intense scrutiny as two Ontario vacancies on the Supreme Court of Canada wait to be filled. Frequently heard amidst the surrounding debate are calls for Canadian public hearings— “congressional-style”— like those held in the United States, to decide Supreme Court appointments in Canada.
The call for US-style hearings is hardly surprising, given the current social and political climate here in Canada. The responsibility of Canadian courts to deal with important socio-political issues under the Charter of Rights has led to regular political attacks against the judiciary in difficult cases. In their thirst to rein in the judiciary and prevent judges “legislating from the bench,” some politicians want greater control over the appointment of judges.
The Canadian Bar Association (CBA), which represents over 38,000 lawyers and other jurists across Canada, welcomes the review of the judicial appointments process. In fact, we have long been in the forefront of calls to strengthen that process, to make it more transparent, and to reduce the possibility of appointments based on patronage rather than merit. We believe that the appointment of judges to the Supreme Court of Canada must adhere to the principles of judicial independence, openness and merit. But we think that the introduction of parliamentary confirmation hearings would seriously threaten the independence of the Canadian Supreme Court, which despite its flaws, is among the most respected highest courts in the world.
The CBA has long been involved in pressing for improvements to the appointments process. The association established its National Committee on the Judiciary in 1967 after discussions with Pierre Trudeau, then minister of justice. The committee’s mandate was to assist the minister of justice by considering and expressing opinions on the suitability of individuals the minister was considering for judicial appointment.
However, this committee’s work still did not resolve our concerns about the appointments process. There still appeared to be too many patronage appointments, particularly in the early 1980s. In 1984, the CBA established a committee on the appointment of judges in Canada (the McKelvey Committee). The committee conducted extensive interviews across the country and found widespread dissatisfaction with the method of judicial selection and appointments. It also identified a broadly based desire for change. Among the major dissatisfactions identified by the committee— not surprisingly— was the extent of political patronage in appointments. The report of the McKelvey Committee, issued in 1985, concluded that the appointments system then in place was not designed to select the best potential judges. It found that although the quality of the Canadian judiciary was good, it was uneven, and that some of the more evident weaknesses flowed from patronage appointments.
To address patronage and the perception of judicial bias, McKelvey concluded that Parliament should not play a role in the selection or appointment of federal judges. The report rejected the US system of congressional review in part because of the “virtual inquisition” into candidates’ private affairs. Following the report of the McKelvey Committee, the CBA called for the creation of non-partisan advisory committees to advise on judicial appointments. These committees would have representatives from the public, the legal profession, the judiciary and governments. Nominations or suggestions for candidates for appointment as judges were to be encouraged from a wide variety of sources.
Advisory committees were subsequently introduced for superior and provincial courts throughout Canada. However, the CBA’s recommendation that this advisory process apply to Supreme Court of Canada appointments was never followed.
One development just a few years after the McKelvey Committee report was released heightened the potential for political patronage in Supreme Court appointments. The 1987 Meech Lake Accord would have seen the provinces submit lists of candidates from which the federal government would select appointees to the Court. The CBA advised that this method for selecting judges was too susceptible to political influence and stalemate, and that it might not result in the appointment of the most highly qualified candidates. The CBA urged the federal and provincial governments to reconsider the process of selection of judges for the Supreme Court provided in the Meech Lake Accord. It called again on the government to adopt the CBA’s recommendations on the appointment of judges to the Court. The failure of the accord met the CBA’s immediate concern with Meech’s proposed appointment process, but there was still no action by government on the CBA’s call for an independent advisory process.
At present, appointments to the Supreme Court rotate by region. This continues to give rise to the perception that provincial politics are involved in these appointments. Furthermore, most Canadians don’t know how the appointment process works, and suspect— rightly or wrongly— that there is political interference. As well, without a formal appointment process in place, consultation with those most familiar with the profession and among ministers of justice, attorneys general and Department of Justice officials is inconsistent.
In March 2004 the CBA twice wrote to Prime Minister Martin urging that appointments to the Supreme Court of Canada be made following the established, well-known and understood advisory committee process already in place in the provinces and territories.
The PM would appoint a special advisory committee each time a vacancy occurs on the Supreme Court. The committee would be structured much like the existing federal judicial appointments advisory committees, drawing from the legal community and the public. It would be composed of representatives of the federal minister of justice, the provincial attorney general, the chief justices and law societies in the jurisdictions from which the candidate would be selected, and the national president of the CBA. In addition, the committee structure would differ from the existing model by including four parliamentarians from the House of Commons Standing Committee on Justice and Human Rights, elected by that committee to the special advisory committee.
The special advisory committee would offer assessments to the prime minister of persons being considered for appointment, identifying them as “recommended,” “highly recommended,” or “not recommended.” The committee, in applying these merit criteria, would be bound by the same rules of confidentiality that apply to the current advisory committee process for other judicial appointments. There would be no public confirmation hearings.
The CBA has identified the essential merit criteria for men and women being considered for judicial appointment. They include: high moral character; human qualities such as sympathy, generosity, charity, and patience; experience in the law; intellectual and judgmental ability; good health; good work habits; and bilingualism, if required, by the nature of the post.
This proposal responds to calls for involving parliamentarians in the appointment process without politicizing the process in the manner of the very public US congressional hearing system. This advisory process also makes the criteria and process for appointments to the Supreme Court much more transparent than the current process.
This proposal also reflects the unique nature of the Supreme Court of Canada as Canada’s court of last resort. While all judges in Canada make law, the lower court judges, including those of the courts of appeal, are bound by precedent differently than the Supreme Court of Canada. Their scope for law-making is therefore more restricted than the Supreme Court of Canada’s, and their decisions are subject to appeal to the Supreme Court of Canada in any case. The public interest in parliamentary involvement in the judicial appointment process is therefore most effectively addressed at the Supreme Court of Canada level. It adds parliamentary involvement in the process without losing or compromising the integrity of the current system for lower courts, which works well, has resulted in excellent appointments and is held out as a model internationally.
Because of the interest expressed in some quarters for US-style public hearings to select candidates for the Supreme Court, it is worth exploring more fully the reasons for rejecting such an approach. The simple reason, stated above, is that they would pose an unacceptable threat to the independence of our judiciary. In the United States, such hearings have become heavily politicized. The same would almost certainly occur here if public parliamentary review hearings were held.
In the US, federal judges, including those of the US Supreme Court, are appointed by the president, with Senate approval. No explicit qualifications for judges are set out in the US Constitution. The president can appoint any lawyer for whom senatorial confirmation can be obtained. At a confirmation hearing in the US, potential judicial candidates can be subjected to an intensive grilling by the Senate Judiciary Committee about their views on current social and political questions. Prying by politicians into judicial candidates’ private lives can amount to a virtual inquisition, especially if the political complexion of the politician differs from that of the candidate. Committee hearings have sometimes become a forum for those who have an axe to grind with respect to particular judicial decisions or with the judiciary generally.
This has been a longstanding problem with the US appointments process. Even back in the 1970s, some argued that US confirmation hearings created bias along party partisan lines. Canadian constitutional scholar Sydney Lederman wrote at that time that “loyalty to the political party in power is given priority over merit pure and simple.” Citing a study from a decade earlier, Lederman noted that, despite the requirement for Senate ratification of US nominees, over ninety percent of the judicial appointments were members of the president’s party.
The US Senate confirmation hearings for Judge Robert Bork in 1987 and Clarence Thomas in 1991 are perhaps the most compelling examples of the potential misuse of such hearings. In the case of Judge Bork, the Senate Judiciary Committee called more than 100 witnesses, far more than for any prior US Supreme Court nominee. Some American legal scholars argue that the Bork hearings were all about judicial ideology— something that the Canadian judicial appointment process must avoid if it is to preserve judicial independence. In the end, the Senate rejected Bork. Four years later the US Senate confirmed Clarence Thomas’s appointment, though not until after he underwent lengthy televised hearings that included salacious allegations about his personal life— an experience he described as a “hightech lynching.” One might well ask what public good such hearings served. The answer, almost certainly, is “none.”
The CBA sees no value for the justice system or for Canadians if the appointment process exposes judges to parliamentary criticism of their past judgments, or cross-examination on their beliefs or preferences or judicial opinions. We oppose any measure which would give to Canadians the mistaken impression that the judicial branch answers to the legislative branch or that appointment to Canada’s highest court is dependent on membership in the governing party of the day. Only the competence and experience of potential candidates for the Supreme Court of Canada should be considered. Their personal opinions and their personal lives should not come into play.
Furthermore, the public grilling that would become part of a parliamentary committee process would almost certainly discourage highly qualified candidates from having their names put forward. Our judiciary functions as well as it does in large part because it attracts many of the finest and best qualified members of the legal profession.
Finally, Canadian society is based on the separation of powers between the judiciary, the executive and the legislature. This system has served Canadian democracy well to this day. Bringing partisan politics into the judicial appointments process would represent an undesirable change in that otherwise successful relationship, and for little gain elsewhere.
We are not alone in shying away from public hearings. The United Kingdom, Australia and New Zealand have all conducted recent reviews of the judicial appointments process.
The UK, for example, is considering far-reaching changes to its judiciary, including abolition of the appellate role of the House of Lords. A Supreme Court of the United Kingdom would be established, and a judicial committee would deal with the appointment of judges. It is significant that the UK government, in its consultation paper on this issue, chose an approach which will focus attention on a candidate’s merit rather than on his or her social or political affiliations.
It was the patronage appointments of the early 1980s that sparked calls for a better judicial selection process— one based on merit, not political ties. It would be sadly ironic if, after this successful effort to shake off the mantle of patronage, it were to re-enter the picture through the introduction of public parliamentary hearings, which is inevitably where parliamentary hearings to consider judicial appointments would take Canadians— right back to the spectre of patronage in selecting judges.
No system for appointing judges is without its faults as the selection of judges, like the dispensing of justice, is a very human endeavour. Recognizing perfection is unattainable, the CBA continues to urge greater transparency in the process by which judges are chosen. In particular, the public’s need to understand the appointment process must guide the prime minister in selecting a new process for appointing judges to the Supreme Court of Canada.
Today, we continue to urge that appointments to the Supreme Court be made following an established, well-explained, publicly understood advisory process based on merit. When Canadians understand how Supreme Court judges are appointed, their confidence in the system will be that much higher. Canadians expect, and are entitled to have, judges who are well qualified, independent, and perceived to be independent of political influence.
Canada is blessed with among the best and most independent judiciaries in the world. Nothing must be allowed to jeopardize that independence, especially at the level of the Supreme Court of Canada. As Chief Justice McLachlin noted, we congratulate ourselves on our judicial independence, but we would be foolish to take it for granted. And we must not allow the superficially seductive idea of parliamentary hearings to weaken the appointments process, one of the foundations of this independence.
