The New Supreme Court of Canada Appointment Process: Some Thoughts

I wrote this op-ed-style piece earlier in the week with my initial reactions to the announcement of a new appointment process but was travelling and did not have an opportunity to post it. If I find the time over the weekend, I’ll add some thoughts about the constitutionality of the new process, in particular the convention and bilingualism issues.

The announcement of an independent selection process for Supreme Court of Canada judges, prompted by the need to replace the retiring Justice Thomas Cromwell, is excellent news.

No longer will political appointments be made because of party allegiance or ideology rather than legal acumen. Nor will judges actively lobby behind the scenes for elevation to the Court. Henceforth, a judge’s ability to ‘do law’ will become the primary criterion for nomination, bringing Canada into line with other countries where appointments are made entirely on merit.

The legal system will benefit from this change of approach. Of course, judicial decisions often have a political tinge, especially on constitutional matters, but as the body that sits on the apex of the judicial system, the Court must give guidance to lower courts, lawyers and individual litigants. Doing so effectively requires considerable skill, deciding individual cases whilst also setting out general principles for the resolution of future litigation. An independent appointments process will better identify judges with the necessary craft.

More generally, the new process has clear parallels with Prime Minister Trudeau’s approach to Senate appointments. In both cases, the absolute discretion of the federal government has been significantly circumscribed. Whereas previously the government itself would formulate a long list and a short list – with significant latitude to ensure that its personal favourites made it into contention – now its choice must be made from three names presented to it by a committee whose own discretion will be cabined by criteria that hone in on judicial merit. As with the Senate, these criteria are publicly available, which brings welcome transparency to the appointments process.

Beyond this, the promise that the Minister of Justice will appear before her fellow parliamentarians along with the chair of the independent committee further underscores the non-partisan nature of the new process. This is not a new innovation – Mr. Irwin Cotler appeared before an ad hoc committee in 2004 – but is nonetheless welcome, because the Minister will be mindful of the need to justify her choice from the list of three by reference to the nominee’s objective merit as a jurist.

Some will chafe at the emphasis on bilingualism as a desirable characteristic, but the Court hears many public law cases (especially criminal cases) from Quebec where the record created by the lower courts is in French and it must also interpret laws (especially federal laws) that were drafted bilingually. Reducing regional representation to a factor to be considered might also trouble some observers. However, except for Quebec’s constitutionally entrenched special status, regional representation has always been a convention, not a legal requirement. Conventions are fluid and there are advantages to taking a less mechanistic approach to regional balance: if a Maritimer is not appointed now to replace Justice Cromwell (who is in fact a native of Ontario), someone from the east coast would presumably be named on a more opportune occasion in the near future (not to mention that it is difficult to justify giving Ontario three seats on a modern Court). As long as the appointment criteria are not turned into inflexible rules, they should not constitute substantive changes to the Supreme Court Act, which based on the Court’s decision in l’affaire Nadon, would arguably require constitutional amendments.

On the whole, these changes are a marked improvement on what went before, putting the focus on legal merit and bringing a significant degree of transparency to a previously opaque process.

This content has been updated on August 5, 2016 at 14:25.