Friday, October 14, 2011
October 14, 2011, online
On August 5 the Minister of Justice, Rob Nicholson, announced the members of a“Supreme Court Selection Panel to fill the vacancies at the Supreme Court of Canada” resulting from the retirements of the Justices Ian Binnie and Louise Charron. The panel reportedly finished its work early this month, though no further announcement was made.
The Supreme Court of Canada Act provides that the judges of the Court shall be appointed by the Governor General, in practice on the advice of the Prime Minister. The Selection Panel had no legal foundation. It was a group of Members of Parliament, but it was not a committee of the House of Commons. No statute or regulation required or authorised the Minister of Justice to establish it. It was the creation of a press release.
The release said the panel would review a list of candidates “created”by the Minister of Justice “in consultation with the Prime Minister, the Chief Justice of Canada, the Chief Justice of Ontario, the Attorney General of Ontario and other prominent legal organizations,…” with input from the public. From this list the panel was to“provide”an unranked list of six from which the Prime Minister and the Minister of Justice will choose two. That they will be appointed by the Governor General is not mentioned.
The casual informality by which it is reported that the highest legal offices in the land are to be filled is weird. But it is the inevitable result of the perennial squawk that something must be done about the “process” by which Supreme Court judges are chosen, even from those who are perfectly content with the appointments made in the decades since the squawking started.
It is unlikely that there are more than six willing and likely candidates for the two Ontario vacancies on the court, so the Selection Panel may have no influence on who gets appointed. But they must have been given more than six names or they would have known they were being taken for fools and there is a risk that they may have eliminated one or more of the best prospects. If not this time, then another time, if this absurd process is entrenched.
Who are they anyway? Five M. P.s put up by their parties, four of them lawyers, one a former Minister of Justice who was involved in earlier attempts the placate the squawkers, and one, the chair, a financial planner. Tory M. P., Brent Rathgeber, chuffed at his selection to select, blogged that he was “spending the last part of my summer reading judgments and published articles written by the prospective nominees.…it has been quite some time since I have read law so intensely but I am certainly finding this project, although time consuming, extraordinarily interesting.”
They were not elected to choose judges and should the result be less than satisfactory they won’t be held responsible. Before the waters were muddied by the squawkers, we knew who was responsible. Now Harper can say he reformed the “process” and is not responsible for the result.
Agitators about the process crudely see seats on the Supreme Court as plums handed out by the Prime Minister and sought by the unworthily ambitious. A seat on the Court is public service and the best prospects will see it as a duty they would not seek but would accept if called upon. The press release’s talk of candidates makes it sound more like an election with candidates pushing themselves forward.
It begins to look like the Giller Prize, the long list reduced to a short list by the Selection Panel and the Prime Minister and the Minister of Justice choosing the winners.
Binnie and Charron announced their retirements in May. In the months that have passed perhaps a dozen judges and eminent counsel have had the prospect of moving to Ottawa and the pluses and minuses of a seat on the Supreme Court dangled before them. The best of them could fairly be fed up with waiting. Binnie was appointed on January 8, 1998, little more than six weeks after the untimely death of John Sopinka, whom he replaced. The “process”now looks like taking six months with the court short handed for several weeks.
None of this need matter to Stephen Harper. He is playing to the squawkers. There never was a prospect that he could shape the Supreme Court to serve or protect a conservative agenda. Canada does not afford the judicial tendencies an American president can turn to when making appointments to the courts. We’ll get two competent judges who will pass through the charade of a hearing before a House of Commons committee and then be forgotten beyond the legal chapter of the chattering classes. But we might have done better if Harper had just announced appointments in June.