As critics continue to pelt Prime Minister Stephen Harper with questions about Supreme Court appointments, a University of Ottawa professor has published a report that says a major “transparency deficit” plagues the process for nominating judges.
Prof. Adam Dodek says the public now knows less about how the government appoints Supreme Court judges than it did 10 years ago even though it revamped the process in 2002 in an effort at allowing for more accountability.
But the Supreme Court advisory committees, introduced to advise the government on appropriate judicial candidates, are “completely shrouded in secrecy,” says Dodek.
The most troubling transparency deficit, Dodek says, is the lack of information about the very basis on which the committees select one candidate over another.
“All we really know is the members of the committee; that’s really all the information we have,” he says.
“The members of the committee are bound by a confidentiality agreement and apparently, the people that they consult with are also bound by secrecy or by a confidentiality agreement.”
At times, the prime minister or justice minister provides a sentence or two about the level of support on the committee for a nominee. In other instances, as was the case with Justice Marc Nadon’s failed appointment, the prime minister is silent on how the selection committee made its recommendations, Dodek notes.
“What are we to make of that silence? I don’t know.”
Historically, there has been a great deal of confidence that there would be no attempt to appoint judges who support political platforms, says Toronto lawyer Bill Trudell, who acknowledges some forms of patronage may nevertheless have existed.
“What’s happened here is that we had a system that wasn’t perfect but it was built on trust. What’s happened is that because of the way the government has interfered, or attempted to, the trust has been frayed and eroded.
That’s sad. That’s unknown in our country and totally unacceptable.”
Trudell, who has sat on an appointment committee for judges in Ontario, says the federal government should adopt a similar apolitical protocol where it chooses a judge from a list given to it by the selection committee as opposed to the other way around.
“That way, the government had nothing to do with the application process, the screening process, the interview process, and the recommendations,” says Trudell.
“Maybe we need to consider this [process] because the prime minister has poisoned the chalice.”
Currently, the Supreme Court selection committee is to choose a candidate from a so-called “long list” created by the justice minister. “The long list is actually very, very short,” says Dodek.
Recently, The Globe and Mail revealed that the long list of candidates at the time of Nadon’s nomination included only six judges.
“If this body is truly supposed to be a selection committee, then I think they should have more discretion and shouldn’t be bound by a very, very narrow list of candidates that the minister of justice gives them,” says Dodek.
When it comes to improving the appointment process, Liberal MP Sean Casey disagrees about the need for more transparency.
“In considering the appointments of senior lawyers and jurists to the Supreme Court, including judges sitting on provincial courts of appeal, some discretion is important. So I don’t believe we necessarily need more transparency in the process. That could risk politicizing the Supreme Court as has happened in the U.S.,” he says.
What’s needed, he says, is “a prime minister who acts with integrity and makes responsible appointments. For that, we need a change of government.”
Casey says judicial appointments have historically been uncontroversial.
“Yet Stephen Harper has put his ideology and his contempt for the Charter over the integrity of our highest court. It’s disgraceful,” he adds.
Harper has been facing questions about how the government nominated Nadon to the top court in light of the Supreme Court’s rejection of his appointment. It found that as a Federal Court judge, he wasn’t eligible to fill a spot reserved for a Quebec judge on the bench. The fallout from the case resulted in a public spat between Supreme Court Chief Justice Beverley McLachlin and Harper after he suggested she had inappropriately tried to lobby against Nadon’s nomination. The issues around appointments have taken on even greater significance with news of the looming retirement of Justice Louis LeBel and reports last week that the federal officials would be consulting with the Quebec government on who to nominate to fill the current Quebec vacancy on the top court.
As for McLachlin, Casey says the chief justice did “nothing wrong” in trying to warn the prime minister about what could happen if the government nominated a Federal Court judge. “Stephen Harper should apologize to the chief justice and then send a couple of his boys in short pants to law school,” he adds.
The controversy led to more questions about the consultation process that takes place during the selection of Supreme Court judges. It’s an issue Dodek looked at in his review. “There are consultations and then there are consultations. A consultation may be a pro forma affair wherein the person being consulted is asked for their suggestions and which are then politely filed away. Such appears to have been the case with the federal government’s consultation with the attorney general of Quebec over the Nadon appointment.”
Dodek says he’s especially “skeptical” about the legitimacy of consultations with the public.
“First, members of the public are generally not familiar with Supreme Court nominees and the minister of justice is unlikely to get much substantive input that would actually be useful,” he wrote in his report.
“Second, it is not clear that the minister of justice does anything with the public input, let alone passes it along for consideration to the Supreme Court selection panel for its consideration or to the parliamentary committee.
There is no public summary provided of the public input.
“It thus appears to me that the sole reason for the invitation to members of the public appears to be to enable the minister of justice to claim that members of the public participated in the process.”
To add to the problem, the very people who are on the selection committee also sit on the parliamentary body that will interview the chosen nominee, Dodek notes. The time gap between the nomination and the parliamentary hearing is often 48 hours, an interval he says doesn’t allow for more than “a cursory review” of a judge’s history.
“The time that the government has given the committees of parliamentarians to prepare for questioning the nominee is simply inconsistent with their exercise of any serious accountability function,” he wrote in his review.