With retirement of Justice Thomas Cromwell Justin Trudeau’s government has an opportunity to rethink the ways in which appointments to the Supreme Court of Canada are given a public airing. It is likely that we will hear calls to reinstate the process Stephen Harper eventually abandoned, but which he used for his first five Supreme Court appointments: appearance by nominees before a House of Commons committee for polite questioning. This would be a mistake. Though that process unquestionably is better than the archaic system to which Harper reverted for his last three appointments, it is seriously flawed.

The public hearing process has its genesis in Reform Party proposals for a reformed Senate. A revamped Senate would provide advice and consent to the prime minister regarding Supreme Court appointments and other high office appointments, just like the United States Senate. It seems pretty clear that the interview process was intended to be a warmed-over version of US Senate judicial confirmation hearings. Following upon the heels of the Supreme Court’s 1988 Morgentaler decision striking down the Criminal Code abortion provisions, the Reform Party wanted to more closely scrutinize, and thereby politicize, the Supreme Court appointment process.

This did not happen. The hearings were described in the press as a “love-in,” overly “genteel,” and akin to a “meet and greet.” The questioning was tepid and uninformative. The press mostly lost interest. My own research suggests that little was revealed about judicial decision-making or about the relationship between law and politics. What we did learn from each nominee, echoing Conservative talking points, was that they would not “create” law but only “apply” it. The press, nevertheless, liked what they saw. What they observed were smart and eloquent jurists, very unlike the politicians that the same journalists covered on Parliament Hill.

Despite the insistence from the bench that judges do not make law, it is naïve to think otherwise. There are many contentious constitutional questions for which legal tools (such as text and precedent) provide no obvious answers. It is in these areas, ones that are open to interpretation, that a judge’s preferences, experience and ideology come into play. Committee members were not willing to enter into this domain. In fact, they were instructed not to do so by their legal advisers. Only “general questions” were permitted. Their task was confined to determining, in a roundabout way, whether the nominee had the “right stuff” to be a Supreme Court judge.

As in US confirmation hearings, nothing could be asked that would “forecast opinions about future or controversial cases.” Unlike US hearings, nominees could not even be questioned about earlier precedent decided by the Supreme Court. For instance, when asked whether there were limits to constitutional growth associated with the “living tree” doctrine, Justice Richard Wagner refused to answer the question. Doing so could disqualify him from sitting in some future case. Canadians would learn little from these hearings other than each justice’s hardscrabble existence and their unanticipated rise to judicial heights.

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“Rather than reverting back to flawed, and not very rewarding, processes, the time is ripe for a rethink”

There might be a temptation to return to the process initiated by Paul Martin’s government, where the minister of justice personally appears before a House Committee to speak to an appointee’s credentials. This model does not serve well the transparency and educative functions that public processes are expected to deliver. Rather than reverting back to flawed, or not very rewarding, processes, the time is ripe for a rethink. We might look elsewhere than to a dysfunctional US confirmation process for inspiration.

There are a variety of models operating in the world that could provide guidance. In South Africa, a widely representative committee solicits applications for appointment to the Constitutional Court. Transcripts of interviews with potential candidates are made publicly available and the appointment is made by the president in consultation with political party leadership in the National Assembly. In the United Kingdom, vacancies on the new Supreme Court are filled by the lord chancellor from a list of nominees identified by a five-member commission that is top heavy with lawyers and judges. Neither of these appointment processes is without its problems – the first is more overtly political and the second under the control of legal elites.

Canadians may want to strike a different balance between independence from politicians and judges and accountability to the public, with more transparency. It is also an opportunity to think about enhancing public understanding about constitutional decision- making, an outcome that so far has been lacking.

David Schneiderman
David Schneiderman is a professor of law at the University of Toronto. He is the author of Red, White and Kind of Blue? The Conservatives and the Americanization of Canadian Constitutional Culture (University of Toronto Press).

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