OTTAWA - The government''s failure to follow its own process to name Canada''s newest Supreme Court justice underlines the need for reform of the way appointments are made to the country''s top court, says one of Canada''s top court watchers.
Peter Russell, professor emeritus of political science at the University of Toronto and an expert in judicial
systems, says the appointment process has been changing from one government to the next in recent years with the procedure to be followed revealed in press releases posted on the federal justice department web site.
"That's not good enough," says Russell.
"That is what I call the stumblebum method. We're talking about the process of picking and choosing and selecting some of the most important people in Canadian government."
Others, like Eugene Meehan, one of Canada's top experts on the Supreme Court and chairman of the SCC practice group at Lang Michener LLP in Ottawa, say the initial procedure set up by the government is a good one and a "considered and careful compromise" between two opposing points of view on how justices should be appointed.
However, Meehan says the government did the right thing by overriding the process when a series of political events made it difficult to fill the vacancy on the bench in a timely fashion.
"Whether it was the right political thing to do is for others to decide. However, this prime minister put the court ahead of transient political partisanship and thereby demonstrated both juridical leadership and juristic statesmanship."
The controversy centres on the way in which Justice Thomas Cromwell was appointed to the Supreme Court late last month to replace Justice Michel Bastarache who stepped down last spring.
Cromwell, who was quietly sworn in last week in a private ceremony, has been widely praised as a good addition to Canada's top court. But the way in which the appointment process unfolded has raised more than a few eyebrows.
When Prime Minister Stephen Harper came to power, he announced plans to follow a more transparent process for appointments to the top court, including wider consultations and public questioning of nominees by MPs - a process that was followed with the government's first appointment of Manitoba native Marshall Rothstein.
In May, Justice Minister Rob Nicholson announced a three-step process to replace Bastarache, involving consultations, an all-party selection panel, and public hearings.
But in September, with the panelbogged down in procedural wrangling and a general election looming, the government short-circuited its own process and nominated Cromwell. On Dec. 22, after he had been forced to ask for the prorogation of Parliament, Harper announced Cromwell's appointment, even though the Nova Scotian jurist had not faced a public hearing.
Harper cited the urgency of filling the seat on the bench that had been vacant for eight months and pledged to return to his appointment mechanism in the future.
Russell says the appointment process is badly in need of reform and Canada should move quickly to draft a new system. The traditional procedure, where the government selection process takes place entirely behind closed doors, leaves the government in a conflict-of-interest situation, says Russell.
The government chooses a justice who will then be called upon to hear important constitutional cases in which the government itself is often a party.
Russell prefers South Africa's process where leading candidates for the top court go through a public interview with an advisory committee.
Unlike the Parliamentary committee hearing process set up by the Harper government, which Russell describes as a "charade," South Africa's advisory committee is composed of a wider range of people and the proceedings are presided over by the country's chief justice, he says.
Roderick Macdonald, a law professor at McGill University and former president of the Law Commission of Canada, agrees that hearings before a Parliamentary committee aren't an essential step in naming Supreme Court justices.
"It's a public relations exercise," he says bluntly.
By the time a name even makes it to the prime minister's desk, the nominee has been thoroughly examined by the provincial screening committee and the government's own internal vetting process, pointed out Macdonald who went through a screening process when he was named to the law commission.
Meanwhile, Guy Joubert, president of the Canadian Bar Association, welcomes Cromwell's appointment, saying he is an excellent choice for the job.
"As far as what happened in this round, that's a debate we'll leave for the politicians."
Joubert says the CBA would like to see a transparent, non-partisan process for appointments to the Supreme Court and a publicly available protocol.
Adam Dodek, a professor of public and constitutional law at the University of Ottawa and Law Times columnist, says the ad hoc
nature and 180-degree turn by the government on the appointments process is more a political issue than a legal one.
Reforming the appointments process isn't a priority right now for either the government or the public, he adds.
"I think that the reform of the Supreme Court judicial appointments process is very much up in the air. I don't think it's a political priority for any of the parties and frankly for the Canadian people as well. Especially in these economic times, I just don't think it is something that any group is really going to push."