The selection process to fill the void at the Supreme Court of Canada needs further reform, according to a leading commentator on the country’s top court.
Prime Minister Stephen Harper has promised to consult with the legal community and expose his nominees to replace retiring justices Louise Charron and Ian Binnie to questioning by a parliamentary committee. But that falls short of what’s required in a mature democracy, says lawyer and author Philip Slayton.
“It’s a bad system, and despite whatever window dressing you use, it’s actually very straightforward: the prime minister picks who he wants,” Slayton says. “The good thing about the committee is it’s in public but it doesn’t mean very much. They can’t really do anything, they can’t reject the nomination.”
The process will see Harper speak with the attorney general of Ontario, where both appointments will come from, and leading members of the profession to identify qualified candidates.
Those names go before a committee of five MPs, including three from the Conservative caucus and one each from the Liberals and NDP. They’ll narrow the candidates to a short list of six names, from which Harper will select two. The two nominees will then go before an ad hoc parliamentary committee to face questions.
The government used a similar process for Justice Marshall Rothstein’s appointment in 2006, although the system was abandoned in the case of Justice Thomas Cromwell in 2008.
Slayton would rather see the prime minister’s selections ratified by Parliament, a process that would mirror the system used in the United States, where presidential nominations must get through the Senate before taking their seats in the court.
“It’s more democratic, it’s more transparent,” Slayton says. “The public process takes place over a long enough period of time that anyone who’s interested can take a good look at the candidate and find out exactly what this very important person is all about.”
But Sandra Forbes, a partner at Davies Ward Phillips & Vineberg LLP who clerked at the Supreme Court and has been a regular contributor to the Supreme Court Law Review, fears a move towards U.S.-style grilling of candidates could make the process more partisan and scare off strong nominees.
“In the U.S., you see judges chosen because of what their personal, religious, and moral preferences are. Then they’re expected to vote in that way on decisions as opposed to what way the law tells them.
There are a lot of people in our profession with stellar reputations who are also very private. And they would think it’s nobody’s business where they go to church or what they think about abortion because it really is nobody’s business and it’s irrelevant to how they would decide a case on abortion.”
But Slayton says ambitious lawyers should be prepared for some “democratic rough and tumble” when seeking positions as important as Supreme Court judges.
“You may not enjoy the process but you’re going to participate in it. And if you’re not prepared to participate, you shouldn’t be appointed in the first place.”
Harper has already selected two Supreme Court judges during his term and now stands to nominate at least five more before the next scheduled election.
Former Ontario Bar Association president James Morton says a rightward shift is inevitable at the court but he believes the appointment process will limit partisanship.
“It’s going to have a huge impact, in the long term, on the development of the court,” says Morton, who ran for the Liberals in the recent election.
“You’re going to get more of a law-and-order shift with more conservative judges but not the radical appointments some are afraid of. I don’t think we’re going to find the kind of things we see in the U.S. where decisions really do seem politically based.”
Still, he also believes the appointment system would benefit by taking the decision out of the hands of the prime minister. He’d like to see a model based on the British process that sees recommendations by a body at arm’s length from the government.
“I think the prime minister is going the right way, but he’s taking small steps,” Morton says.
Charron joined the bench in 2004, but at the age of 60, her departure comes much earlier than many had forecast, especially considering that the mandatory retirement age for Supreme Court judges is 75.
“My husband and I both enjoy good health,” Charron said in a statement. “We have a great family and wonderful friends. I have been a judge for 23 years now and the seventh anniversary of my appointment to the court, Aug. 30 next, seems like the perfect time to move on.”
Binnie, 72, is due to leave on the same day. He has served on the Supreme Court since 1998 following 12 years as a partner at McCarthy Tétrault LLP on Bay Street.
“Much as I will miss the work and my colleagues, I am now well into my 14th year on the court, and the time has come to return to Toronto to pick up some of the threads of an earlier existence,” Binnie said in a statement.
Professor Jamie Cameron, another former Supreme Court clerk and constitutional law expert at Osgoode Hall Law School, says the retirements leave the court weak on criminal law issues.
“It’s well known that Justice Charron had some expertise in criminal law, although she tended to favour the Crown side of the argument, and Justice Binnie also took an interest in criminal law cases, so I think it makes sense for the prime minister to look for someone with those interests and skills,” she says.
Slayton says he’d like to see another practising lawyer elevated straight to the bench following in Binnie’s footsteps. He’s the only current judge not appointed from a federal or provincial court of appeal, something Slayton says has been seen as a benefit.
“If you look at these judges, they tend to have primarily either a judicial career or an academic career. A lot of the law is about the practice of law, and I think you need that strength.
You also need people with a strong corporate and commercial background and experience because a lot of cases that get to the court are that kind of case.”
Ottawa lawyer Guy Pratte of Borden Ladner Gervais LLP is one name mentioned in the wake of the vacancies, along with Sheila Block of Torys LLP and Law Society of Upper Canada benchers Linda Rothstein and Janet Minor.
But the Ontario Court of Appeal, where Charron sat before her elevation to the top court, is widely expected to provide at least one of the nominations, although the potential pool could be significantly narrowed if the opposition parties maintain their support for bilingual candidates.
A bill that would require Supreme Court appointees to be bilingual passed third reading in the last Parliament but was stranded in the Senate when the recent election was called. Yvon Godin, a New Democrat from New Brunswick, made the suggestion in a private member’s bill.
Court of Appeal judges who can match that requirement include Robert Blair, Robert Sharpe, Karen Weiler, and Andromache Karakatsanis.
“There’s increasing pressure for appointments to be truly bilingual, not just with kind of restaurant French but really bilingual,” Slayton says. “The NDP for one is very committed to tha