Those who sit on the bench of the Supreme Court of Canada must be independent, competent and of the highest integrity, and people should have confidence that the judges possess those qualities. The choosing of such jurists should not take place behind closed doors.
Prime Minister Justin Trudeau is doing the right thing by making that process more transparent, more consultative and less likely to be swayed by partisan politics.
In theory, justices of the Supreme Court are appointed by the governor general on the advice of the prime minister and cabinet, but in reality, the governor general does only what she or he is told to do, so it’s the prime minister who makes the call.
The process has evolved slightly, such as the introduction in 2006 of an interview phase conducted by an ad hoc committee of members of Parliament, but the process still involved politicians operating in secrecy, leaving the public with no real assurance that appointments were based only on merit and not on politics.
That said, the Supreme Court justices have largely conducted themselves with integrity and have stayed aloof from political frays.
But the process is open to abuse. In 2013, then-prime minister Stephen Harper appointed Marc Nadon, a Federal Court of Appeal judge from Quebec, to fill one of the three seats on the high court set aside for Quebec.
Harper named, vetted and appointed Nadon in the space of three days in a move seen as an attempt to appoint a judge closely aligned with the Conservatives’ law-and-order philosophies.
But as Nadon was not a superior-trial or appellate-court judge or a current member of the Quebec bar — requirements stipulated by law — the Supreme Court voided his appointment.
Trudeau’s proposed process throws open the windows and lets the light in. Anyone who meets the criteria under the Supreme Court Act can apply. That law limits eligibility for appointment to those who have been judges of a superior court, or members of the bar for 10 or more years.
The list of candidates will be winnowed by a panel of independent experts led by former prime minister Kim Campbell. The justice minister will be required to defend the ultimate choice, and members of the justice committee will have the opportunity to question the nominee, although it will be within the restraints of a moderated forum.
The nominee will be required to be “functionally bilingual,” and diversity will be a consideration.
Campbell is a good choice to lead the process. Although her tenure as prime minister was short, she has extensive academic and political experience, including local and provincial politics in B.C., then in federal politics, where she held several cabinet portfolios.
Trudeau’s plan moves the process away from the taint of politics and infuses it with fresh air. The prime minister will still have the ultimate choice, but that’s the way it should be. The Supreme Court has a major role in shaping our society, and the choice of its members should not be left up to an unelected panel.
Nor should it be decided on the floor of Parliament, where political wranglings could so easily pollute and delay the process, as is seen too often in the U.S.
Supreme Court decisions often spark controversy, and not everyone agrees with those decisions, but we should be confident that the decisions are made on points of law, not on political considerations.
