JUST Committee Report

INTRODUCTION

The Supreme Court of Canada has been in existence since 1875, when it was established by an Act of Parliament. It became Canada’s final appellate court in 1949, when appeals to the Judicial Committee of the Privy Council of the United Kingdom were abolished.

Since its creation, the Supreme Court of Canada has played a central role in deciding upon the distribution of powers in the Canadian federation. The role of the Court has been enhanced since 1982 by the constitutional entrenchment of the Canadian Charter of Rights and Freedoms. One of the effects of this development in Canadian constitutional history has been to enhance the role played by courts at all levels in resolving legal issues. This is a function that the courts have always performed in Canada, but the constitutionalization of rights and freedoms has had the effect of augmenting this role.

In the last two decades, the courts have been called upon to address some of the most difficult and complex legal issues, often involving basic choices in values and priorities. As the final court of appeal in Canada, the Supreme Court has been deeply involved in resolving some of these issues. This has led to a vigorous debate about the respective roles played by legislative bodies and the courts in determining legislative and policy approaches and priorities. This debate is all the more important since the courts play a role in influencing legal policy formation, often requiring Parliament and the legislatures to respond to their decisions on constitutional and Charter-based issues.

Many witnesses said that excellent appointments have been made to the Supreme Court of Canada in the last several decades. The work of Canada’s highest court is widely respected in Canada and throughout the world. The Committee concurs with this view.

The process, however, by which Justices are appointed to the Court is largely unknown and lacks credibility in the eyes of many. The Committee has been asked to address this issue, and develop proposals to render the appointments process more credible, especially through an appropriate role played by parliamentarians.

The challenge to the Committee has been to develop a new appointments process, while at the same time being respectful of the judicial independence so essential to the continued high esteem in which the Court is held. As participants in the judicial/legislative collaboration required for effective legal policy development, parliamentarians have a central role to play in the appointments process. This report is based on that premise.

The witnesses (Appendix A) appearing before us and the Briefs we received (Appendix B) suggested a number of approaches that might be taken to allow Parliament to review Supreme Court appointments. These models propose a number of methods for improving the process and for assessing the candidates themselves. Our challenge was to develop proposals for enhancing the parliamentary goal of general oversight while also protecting the integrity of the Court and its ability to attract the most qualified candidates.

WHAT THE COMMITTEE HAS DONE

On May 6, 2003, Motion M-288, proposed by Richard Marceau, M.P., which read: “That the Standing Committee on Justice and Human Rights study the process by which judges are appointed to Courts of Appeal and to the Supreme Court of Canada,” was brought before the House. On October 1, 2003, the House gave unanimous consent to adopt this motion. Pursuant to this order of reference, on November 4, 2003 the Committee began its study on judicial appointments. Two meetings of the Committee on this issue were held during the Second Session of the 37th Parliament.

In the Third Session of the 37th Parliament, the newly reconstituted and renamed Committee resumed its study on judicial appointments. On December 12, 2003, the Prime Minister announced that the government would “specifically consult the Standing Committee on Justice and Human Rights on how best to implement prior review of appointments of Supreme Court of Canada judges.” This commitment was reaffirmed on February 4, 2004 in the “Action Plan for Democratic Reform”. This Action Plan states that the government will consult the appropriate parliamentary committees on how best to implement the prior review of Supreme Court of Canada appointments. On March 16, 2004, the Chair of the Committee received a letter from the Leader of the Government in the House, which referred to the Action Plan and requested that the Committee undertake a review of this issue and report to the House with recommendations as soon as possible. In the meetings held during the Third Session, therefore, the focus of the Committee’s work shifted to examining exclusively appointments to the Supreme Court of Canada.

THE LEGAL BACKGROUND

Section 101 of the Constitution Act, 1867 provides Parliament with the authority to create a “General Court of Appeal for Canada”. In 1875, Parliament did, in fact, establish such a court, and it is now governed by the Supreme Court Act. Section 4(2) of the Act provides that Justices of the Supreme Court are to be appointed by the Governor in Council by letters patent. Section 5 of the Act indicates that any person may be appointed a Justice of the Supreme Court who is or has been a judge of a Superior Court of a province or a barrister or advocate with at least ten years standing at the Bar of a province. Section 6 requires that at least three of the Justices of the Supreme Court must come from Québec. By convention, three Justices are appointed from Ontario, two Justices are appointed from the West, and one Justice is appointed from Atlantic Canada. Justices hold office during good behaviour and can only be removed by the Governor General on address of the Senate and House of Commons. The mandatory retirement age from the Supreme Court is seventy-five.

THE CURRENT APPOINTMENTS PROCESS

The Minister of Justice appeared before the Committee on March 30, 2004 to explain publicly for the first time the current process for selecting Supreme Court Justices. In his remarks, he described this process as “not so much secretive as … unknown.” In the interests of both transparency and accountability, therefore, he undertook to describe to the Committee the protocol of consultation that is now being used to select members of the Supreme Court. Given that the executive branch of government is responsible for selecting Supreme Court Justices, it seeks to engage in a comprehensive consultation process.

The Minister stated that the consultative process is comprised of two key steps. In the first step, the Minister of Justice identifies potential candidates. Such candidates typically sit on provincial Courts of Appeal, although names can also be drawn from senior members of the Bar or from academia. Any interested person may also put a name forward for consideration. The Minister specifically consults with the following individuals when assembling his or her list of candidates: the Chief Justice of the Supreme Court of Canada and sometimes the puisne judges, the Chief Justice(s) of the court(s) from the province or region with the vacancy, the Attorney(s) General of the province or region, and at least one senior member of the Canadian Bar Association and the law society from the relevant region. The Chief Justice of the Supreme Court of Canada is also consulted about the needs of the Court.

The Minister of Justice must then assess the candidates. The criteria for appointment may be classified under three main themes — professional capacity, personal characteristics, and diversity. Professional capacity encompasses not only proficiency in the law, but also the following considerations:

To assist in assessing professional capacity, the Department of Justice compiles jurisprudential profiles of the candidates. These profiles track the candidates’ judicial decisions, focussing upon their precedent-setting value as well as the outcome of appeals of their decisions.

The Minister of Justice will also look to a candidate’s personal characteristics. These characteristics should include: impeccable personal and professional ethics, honesty, integrity and forthrightness, respect and regard for others, patience, courtesy, tact, humility, impartiality, tolerance, personal sense of responsibility, common sense, punctuality, and reliability. Finally, the Minister of Justice keeps in mind the issue of diversity, as the Court’s composition should reflect that of Canadian society as a whole.

The Minister of Justice discusses the candidates with the Prime Minister. There may also have been previous exchanges with the Prime Minister. A preferred candidate is then chosen. The Prime Minister, in turn, recommends a candidate to Cabinet and the appointment proceeds by way of an Order-in-Council.

INTERIM PROPOSALS

The Committee heard from a number of witnesses that Canada has been well served by its Supreme Court, which has an enviable reputation in the international legal community. Yet the Committee reached a consensus that, whatever the quality of judgements produced by the Supreme Court, the process by which Justices are appointed to that body is secretive or, at the very least, unknown to Canadians. This could lead to the perception that appointments may be based upon improper criteria. The Committee agreed that more credibility in the appointments process would be beneficial to the Supreme Court and lend it more legitimacy in the eyes of Canadians.

The pace of the Committee’s work has been accelerated by the unexpected resignations of two Justices of the Supreme Court. Justice Arbour and Justice Iacobucci are scheduled to leave the Court in June 2004. In order to have a full bench of nine Justices for the fall sitting, it will be necessary to appoint two new Justices at some point in the summer of 2004 so as to give the new judges sufficient time to prepare for upcoming cases. To accommodate this timetable, it appears that the process for screening and selecting nominees to fill the current vacancies is well under way. This led the Committee to the conclusion that, if there is insufficient time to put a new long-term process into place, an interim procedure should be established to shed as much light as possible on how the two new Justices were chosen.

The interim process favoured by the Committee for the current vacancies would see the Minister of Justice appear before it in a public session to explain the procedure by which the two appointees for the Supreme Court were selected. At such a meeting, and without revealing the contents of any private deliberations, the Minister would explain to parliamentarians and all Canadians who was consulted in the process of examining candidates, what investigations of the candidates were conducted, and the qualifications of the two appointees. This may involve, for example, an explanation as to what expertise was lost to the Supreme Court with the departure of Justices Arbour and Iacobucci, and how the new Justices fill any needs that may have been created. In the course of such a meeting, the Committee expects that further light will be shed on the appointments process and further understanding of the work of the Supreme Court will result. If these appointments are made at a time when parliamentary committees cannot meet, a mechanism could be developed to allow the Minister of Justice to give these explanations to parliamentarians and all Canadians.

RECOMMENDATION 1

The Committee recommends that the Minister of Justice appear in public before the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to explain the process by which the current vacancies on the Supreme Court were filled and the qualifications of the two appointees.

When the Minister of Justice appeared before the Committee on March 30, 2004, and explained the process by which Supreme Court Justices are selected, this was the first time that it had been made public. Canadians had their first opportunity to learn who is consulted about Supreme Court appointments and the criteria by which candidates are assessed for their fitness to be a Justice. This furthering of public knowledge can be enhanced by the publication of a document by the Government of Canada setting out the current consultation process.

RECOMMENDATION 2

The Committee recommends that the Government of Canada publish a document setting out the current process by which Supreme Court Justices are appointed.

LONG-TERM PROPOSALS

For the longer-term, the Committee heard from a number of witnesses who cited a need to improve the process by which Justices are appointed to the Supreme Court. Many of them urged the Committee to use caution and take the time necessary to formulate any changes to the current appointments process. In developing its proposals, the Committee has taken this advice seriously. To that end, the proposals contained in this report will require further study.

Some witnesses appearing before us expressed a belief that more provincial input is needed. We also heard a strong desire to maintain judicial independence. In addition, some of our witnesses expressed the wish to maintain confidentiality in the process for two main reasons: to encourage the best candidates to come forward, and to allow for the assessment of candidates to be as frank and fair as possible. Many witnesses made a clear distinction between the transparency of the process and the confidentiality of the deliberations.

The Committee heard from witnesses on the system currently in place to appoint judges to the Federal Court of Canada, the Tax Court of Canada, and the federally appointed judges of the provincial and territorial Superior Courts. Under this process, prospective judges apply directly to the Judicial Appointments Secretariat of the Office of the Commissioner for Federal Judicial Affairs. Each application is vetted by one of the sixteen Advisory Committees on Judicial Appointments, with a minimum of one committee located in every province and territory. The Commissioner for Federal Judicial Affairs said that this appointments system was initially created to provide the Minister of Justice with “broadly based and objective advice about [applicants’] qualifications for appointment”.

Every Advisory Committee on Judicial Appointments is composed of seven members, each of whom volunteers his or her time: one representative from the provincial or territorial law society or bar association; one representative from the province or territory’s branch of the Canadian Bar Association; one judge nominated by the Chief Justice or other senior judge of the province or territory; a representative of the province or territory’s Attorney General or Minister of Justice; and three nominees (or “lay persons”) chosen by the federal Minister of Justice. Members serve on the Advisory Committee for a two-year term, which can be renewed only once.

The Advisory Committees conduct extensive assessments of candidates not already on the bench, reviewing the applicants’ files, as well as consulting with many members of the legal and non-legal communities. Applicants are assessed against a set of criteria. The Advisory Committees then place each applicant into one of three categories — “recommended”, “highly recommended” and “unable to recommend” for appointment. These assessments are confidential and can only be seen by the Minister of Justice, who can use them to make the necessary appointments.

The Committee has concluded that an advisory committee should be established to replace the current process of consultations carried out under the aegis of the Minister of Justice. Such a committee would be formed on an ad hoc basis to fill vacancies on the Supreme Court as they arise. At the beginning of the process, the advisory committee would compile a list of candidates from the relevant province or region. The sources of this list would be varied — the Government of Canada, the provinces, and other sources, which may include applications from interested candidates and nominations. The emphasis at the beginning of the process would be to seek out the most comprehensive possible list of candidates, taking into account a wide variety of views. It is expected that this would produce a pool of highly competent candidates that is reflective of the diversity of the people of Canada.

The work of the advisory committee would then be to reduce this confidential list to a short list of three to five candidates to be forwarded to the Minister of Justice. In preparing a short list, a wide process of consultation would take place, encompassing at least the consultations currently undertaken by the Minister of Justice. Based on our work to date, we would not support the interviewing of candidates but, rather, a process of file review only. Further study of the consultation process is required.

The composition of the advisory committee would strive to reflect a broad spectrum of opinion, while remaining small enough to be a manageable body capable of reaching a consensus on well-qualified candidates. The Committee believes that the advisory committee should be composed of one representative from each of the parties with official standing in the House of Commons, representation from the provinces, members of the judiciary, members of the legal profession, and lay members. Input from the Chief Justice of Canada as to the needs of the Court should be sought. The deliberations of the advisory committee would remain confidential so as to allow for the widest possible range of discussion. The details of the composition of the advisory committee will require further study.

The short list would be forwarded, in confidence, to the Minister of Justice and the final choice will be made. The current constitutional responsibilities would remain in place so that the best candidate would be selected from this confidential list by the Governor in Council and appointed by Order-in-Council. If the Governor in Council did not wish to appoint any of the individuals on the short list, a new short list would be prepared by the advisory committee. Once the appointment to the Court had taken place, the Chair of the advisory committee and/or the Minister of Justice would be invited to appear before the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness. This appearance would be in a public session and would serve two main purposes: to make Canadians more aware of the appointments process and constitute an appropriate forum for parliamentary scrutiny.

AT THIS TIME, OUR RECOMMENDATIONS (3 TO 8) FOR A LONG-TERM PROCESS ARE THE FOLLOWING:

RECOMMENDATION 3

The Committee recommends that an advisory committee be established as required to compile and assess lists of candidates for vacancies on the Supreme Court of Canada.

RECOMMENDATION 4

The Committee recommends that the advisory committee be composed of one representative of each of the parties with official standing in the House of Commons, representation from the provinces, members of the judiciary and the legal profession, and lay members.

RECOMMENDATION 5

The Committee recommends that the advisory committee compile lists of candidates from a variety of sources, including the Government of Canada, the provinces, and other appropriate sources.

RECOMMENDATION 6

The Committee recommends that the deliberations of the advisory committee be conducted in private and in confidence to encourage the widest possible spectrum of candidates and open discussion within the advisory committee concerning those candidates.

RECOMMENDATION 7

The Committee recommends that the advisory committee provide the Minister of Justice with a confidential short list of candidates from which a Supreme Court of Canada Justice may be selected.

RECOMMENDATION 8

The Committee recommends that, once an appointment has been made by the Governor in Council from the list provided by the advisory committee, the Chair of the advisory committee and/or the Minister of Justice appear before the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to explain the process by which the appointee was selected and that person’s qualifications.