The New Selection Process for the Supreme Court of Canada: A Global Constitutionalism Perspective

Cross-posted from I·CONnect

Earlier this week on Monday, October 17th, Prime Minister (PM) Justin Trudeau announced the elevation of Justice Malcolm Rowe from the Supreme Court of Newfoundland and Labrador (Court of Appeal) to the Supreme Court of Canada (SCC).

Filling the vacancy left by Justice Thomas Cromwell’s retirement, this is the first nomination made under the “new selection process” (NSP) announced by the PM earlier this summer in August.

Against the backdrop of an indirect constitutionalization of the Court’s “composition” – through the constitutional amendment procedure provided for in the Constitution Act 1982 (CA 1982) as interpreted by the Court itself – including “eligibility requirements for appointment to the Supreme Court of Canada as they existed in 1982,” this new process hasn’t been made part of the Supreme Court Act (SCA), but presents itself as a mere policy. Leaving aside the question whether what doesn’t even purport to be part of the law may reveal an unconstitutional constitutional amendment, observers of Canadian constitutional law and justice must bear in mind that courts endowed with the jurisdiction to answer reference questions may give advisory opinions on that part of the Constitution that was meant to be purely political, and which is principally composed of constitutional conventions. This partly explains why, although praised by some, the new process quickly proved controversial. Its lack of guaranteeing the preservation of regional representation on the Court had lawyers from Atlantic Canada seeking a judicial declaration that it amounts to an unconstitutional constitutional amendment, thus raising a point that probably became moot with the announcement of Rowe’s appointment. The “functional bilingualism” requirement has also been questioned, and was called unfair by leading aboriginal voices.

This post isn’t about whether Justice Rowe is a good pick. It’s about taking the announcement of his appointment as an opportunity to go back to the NSP, but from a perspective different from the ones that have been debated so far: that of the Venice Commission’s global standards. This requires first situating and describing the NSP.

Legally speaking, justices of the SCC are appointed by the Governor in Council under para. 4(2) of (the partly constitutionalized) SCA. According to a constitutional convention derived from that of responsible government, this appointment is made on the advice of the PM. By means of the NSP, the PM intends to regulate his exercise of this conventional advisory power.

After formal screening by the Office of the Commissioner for Federal Judicial Affairs, applications are transferred to the “Independent Advisory Board for Supreme Court of Canada Judicial Appointments.” The Board is currently composed of seven members, including its Chairperson. Two of them are lawyers nominated by, respectively, the Canadian Bar Association and the Federation of Law Societies of Canada. One is a legal scholar nominated by the Council of Canadian Law Deans. Three others, among whom two non-lawyers and the Chair, have been nominated by the Federal Minister of Justice (MJ). Only one is a judge, in this case a retired judge. The Board, which is expected “to support the Government of Canada’s intent to achieve a Supreme Court of Canada that is gender-balanced and reflects the diversity of members of Canadian society,” consults with the Chief Justice of the Supreme Court of Canada and other key stakeholders it considers appropriate, after which it provides the PM with the “non-binding recommendation” of three to five candidates.

The Board’s shortlist then becomes the subject of a second stage of consultations, this time held by the MJ “with the Chief Justice of Canada, relevant provincial and territorial attorneys general, relevant cabinet ministers, opposition Justice Critics, as well as members of the House of Commons Standing Committee on Justice and Human Rights, and the Standing Senate Committee on Legal and Constitutional Affairs.” After this second round of consultations, the PM is provided, this time by the MJ, with more specific recommendations. Informed by the MJ’s recommendations, the PM chooses the nominee (who still needs to be formally appointed and, later, sworn in).

Once this nomination is made by PM, both the MJ and the Chair of the Board have to appear before the House of Commons Standing Committee on Justice and Human Rights in order to “explain how the chosen nominee meets the statutory requirements and the criteria.” There is more: the nominee will also participate in a “moderated question and answer session” with members of the same committee, as well as the Standing Senate Committee on Legal and Constitutional Affairs, and representatives from the two “unrecognized” (for having less than 12 seats in the Commons) opposition parties. This is where we’re at with Rowe’s nomination. The members of the House of Commons’ Committee on Justice and Human Rights have been given a week to prepare for the hearing of MJ and Chair of the Board, and the Q&A session is scheduled for October 25th, to be held at the University of Ottawa, rather than within Parliament itself.

It would seem logical that the appointment be made only after the very last stage of the NSP, the Q&A session, has taken place. What is more difficult to understand are some redundancies in the process. Consulted with twice on the same nomination, the second time on a shortlist that might not include her preferred candidates, the Chief Justice of Canada gets a very special and somewhat unclear treatment. Parliament also is turned to twice, even though the second time it is only to be explained a choice that has already been made rather than to actually inform it. Furthermore, as transparent as the process aims to be, the constitutional convention of Cabinet collective responsibility, so crucial to our Parliamentary regime, prevents us from knowing about any possible difference of opinion between MJ and PM. But my point here is rather to examine the NSP under identifiable and recognized criteria.

The Venice Commission has worked extensively on the identification of global standards regarding judicial and “constitutional” appointments, the latter category referring to the appointment of judges to constitutional courts or supreme courts having jurisdiction over constitutional matters. Now, it is worth noting that, when it comes to constitutional appointments, the Commission recognizes the legitimacy of practices that it advises against if they are applied to judicial appointments. An example of these is parliamentary participation in the selection process. The Commission distinguishes three categories of constitutional appointments systems: direct appointment, elective, and hybrid. The last is the most common overall, whereas direct appointment systems are the most prevalent among supreme courts (as opposed to constitutional courts). In its report on The Composition of Constitutional Courts, the Commission notes that the “elective system appears to be aimed at ensuring a more democratic representation. However, this system is reliant on a political agreement, which may endanger the stability of the institution if the system does not provide safeguards in case of a vacant position.” (p. 7) Canada’s NSP, by contrast, is a hybrid system apparently intended to function in a reasonably non-partisan way.

This said, it’s relevant to keep in mind that a country may well opt for greater conformity of its constitutional appointments to global standards relating to judicial appointments, either through a direct appointment system or under the direct appointment aspect of a hybrid system, especially a country with a generalist supreme court, where the very idea constitutional justice is well established, and with a strong tradition of judicial independence.

In its report on Judicial Appointments, the Venice Commission identifies the following as standing amongst the best practices regarding judicial (non-constitutional) appointments:

48. An appropriate method for guaranteeing judicial independence is the establishment of a judicial council, which should be endowed with constitutional guarantees for its composition, powers and autonomy.

49. Such a Council should have a decisive influence on the appointment and promotion of judges and disciplinary measures against them.

50. A substantial element or a majority of the members of the judicial council should be elected by the Judiciary itself. In order to provide for democratic legitimacy of the Judicial Council, other members should be elected by Parliament among persons with appropriate legal qualifications.

51. A balance needs to be struck between judicial independence and self-administration on the one side and the necessary accountability of the judiciary on the other side in order to avoid negative effects of corporatism within the judiciary. In this context, it is necessary to ensure that disciplinary procedures against judges are carried out effectively and are not marred by undue peer restraint.

Should Canada want to apply these judicial standards to its Supreme Court and fully comply with them, it would need to go through the constitutional amendment procedure. Nothing prevents Canada, however, from conforming to their spirit. In that sense, if it is to have a board advising the PM on SCC nominations, the composition of that board could more closely resemble that of the Commission’s recommended judicial councils than does the actual Board’s. The existence of a second consultation stage under the authority of the MJ could also be reconsidered, as well as parliamentary scrutiny.

The kind of solution I am suggesting corresponds the one that now governs Supreme Court appointments in the United Kingdom under the Constitutional Reform Act 2005, as amended by the Crime and Courts Act 2013.

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