Late last month, I posted a blog on the timing of Russell Brown’s appointment to the Supreme Court of Canada, and its constitutional implications. I have now expanded it into a paper, which I have just posted on SSRN. Here is the abstract:
On 27 July 2015, Prime Minister Stephen Harper announced that Mr. Justice Russell Brown, of the Alberta Court of Appeal, will replace Mr. Justice Rothstein on the Supreme Court of Canada, when the latter retires at the end of August. Six days after making the announcement, the Prime Minister advised the Governor General to dissolve Parliament. This will be the first Supreme Court appointment, made while Parliament is dissolved, since 1958. That is no accident. There is a constitutional convention obligating the government to exercise “restraint” in making appointments while it is functioning in a “caretaker” role. Though the scope of the convention may be disputed, the weight of historical precedent, the professed views of successive governments as to the existence of the convention, and the actual and perceived significance of Supreme Court appointments, all suggest that it applies to them.
In this paper, I want to consider the caretaker convention and what it has to say about the appointment of Supreme Court of Canada judges while Parliament is dissolved. Though Brown’s appointment has led me to consider this issue, my central aim is not to assess its constitutionality specifically. Instead, I merely use his case as a springboard for reflecting on conventions generally, the caretaker convention, and its application to the appointment of Supreme Court judges.