JUST Committee Report

DISSENTING OPINION BY THE BLOC QUÉBÉCOIS

AN END TO UNFETTERED DISCRETION

On October 1, 2003, the House of Commons unanimously passed Motion M-228 sponsored by the member for Charlesbourg—Jacques Cartier, Richard Marceau, which provided “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”. It is noteworthy that, at the start of debate on May 6, 2003, the Liberal Party had opposed it, but then changed its mind.

This about-face resulted from public pressure on the Liberals to increase the transparency of the process of appointing judges to the Supreme Court of Canada and the courts of appeal.

The debate is not new in Canada, but its urgency is growing. Justice must not only be done; it must appear to be done. The current process followed in the appointment of judges is in direct conflict with the principle, and the appearance of justice is accordingly lessened. To some extent, it is up to parliamentarians to promote public confidence in our institutions and in the judicial system.  In view of the courts’ increased importance today, in part due to their increased functions through the Canadian Charter on Rights and Freedoms and the Charte québécoise des droits et libertés de la personne alone, and their involvement in such social issues as same sex marriage, native claims, decriminalization of marijuana, etc, any connection between the legal and the political is to be avoided at all cost.

This is a strong argument in favour of reviewing the process of appointing judges and making it more democratic. The process must be objective and free of any hint of political bias.

As Professor Peter Russell said on March 23, 2004, “Canada is the only constitutional democracy in the world in which the leader of government has an unfettered discretion to decide who will sit on the country’s highest court.”¹

First point of consensus: the existing process must be changed

At present, there is broad and growing consensus that changes are required to the current process. One witness held that “Canada now has an American-style Supreme Court with a British-style appointments system”.²

Some MPs were quite surprised by the informality of consultation in the current process. Of course the Minister of Justice does consult, but is not obliged to do so. He also chooses the people he consults. There are no rules, and the current Minister of Justice, Irwin Cotler, elicited some surprise in describing the present process to the Committee when he said that he could not guarantee the process he was describing was followed to the letter!

Second point of consensus: a role for MPs

As judges are appointed permanently until they reach the mandatory retirement age of 75 and can significantly change the legal framework of the country by repealing legislation adopted by Parliament or rendering it inoperative, most witnesses felt that MPs should be formally involved in the appointment examination process. Therefore, what must be determined is not whether parliamentarians should have a role but the scope of their role.

Third point of consensus: a role for the provinces

The witnesses agreed in their observations on the formal role of the provinces in the make-up of Canada’s highest court. The source of this view is the federal government’s frequent appearance of being both judge and jury.

Indeed, in a debate on the division of powers (inevitable in a federal system), the appointment of judges at the discretion of the Prime Minister flies in the face of the principle set out above regarding justice and the appearance of justice. Professor Jacob Ziegel could not have been clearer in this regard: "The Prime Minister is in a position of conflict when he fills vacancies on the Supreme Court. This is because the federal government is the most frequent litigator before the Court and the Prime Minister is the most senior member of the federal government involved in the litigation.³ That is patently obvious. Who involved in litigation would permit someone appointed by the opposing party alone to rule on the matter?

A note of discord: a public or private process?

The seemingly main stumbling block in this debate is the relevance of developing the appointment process along entirely public lines. In this regard, the American example comes immediately to mind.

The Senate hearings in connection with the appointment of justices Robert Bork and Clarence Thomas to the U.S. Supreme Court had a very negative impact.

A number of people also feel that public hearings could eliminate high quality candidates who do not want to be subject to such interrogation for personal reasons, naturally, and for basically professional considerations. We can readily imagine the torment of a lawyer in a large firm at the thought that his partners have learned he is considering leaving the practice.

From a different perspective, the public has the right to know more about judges than just their legal qualifications. Because each takes a personal approach to the law, it is logical to assume that certain, more delicate, issues of a social or philosophical nature may be interpreted differently according to the judge’s ideological leanings.

Others feel we are entitled to expect persons in the important position of justice of the Supreme Court to justify their thinking or at least defend it publicly. Accordingly, meetings and debate in a well-structured context would be a healthy approach for candidate examination. The context of the questioning and the limits of what is reasonable must therefore be properly defined.

And the solution?

A province (or a region) could submit a list of potential candidates for judgeships from among whom the appointment is to be made. This is a way to avoid unilateral appointments by the federal government.

The Bloc is highly critical of the Liberal MPs’ rejection of this new proposal, which is in fact a formal request by the Government of Quebec, recently reiterated by Premier Jean Charest, the head of the most federalist government in Quebec’s recent history. He basically restated the position taken by his minister of Canadian intergovernmental affairs, Benoît Pelletier, who was chairing the Comité spécial du Parti libéral du Québec sur l’avenir politique et constitutionnel de la société québécoise, that the provinces could be asked to submit lists of candidates to the Government of Canada from which appointments to the Supreme Court would be made.⁴

The Supreme Court would of course have to maintain its ratio of three justices from Quebec.

Member participation could be arranged with the establishment of an advisory committee to be chaired by the Chief Justice of the Supreme Court in order to evaluate candidates. The committee could include an MP from each of the parties recognized in the House of Commons, a delegate from the Bar of the province concerned (or the Bars of the provinces in the region), the chief justice of the province concerned (or the chief justices of the provinces in the region) and two representatives of the public not part of the legal community.

The committee could thus review the candidates from their files or if necessary in an in camera interview and submit its recommendations to the Prime Minister. Public participation would thus ensure inclusion of a viewpoint from outside the field of law.

The Prime Minister would then choose a candidate from the advisory committee’s short list. The chair of this committee and / or the Minister of Justice would report the appointment publicly to the House of Commons Standing Committee on Justice.

Furthermore, as the Supreme Court of Canada Act establishes quorum as five judges, we think the two current vacancies that need to be filled should be filled according to the process described above, even though it could mean further delay.

In conclusion

The judicial system and the administration of justice lie at the heart of a democracy. The system is even more vital in a federal system such as Canada, in part because of its Charter. The proposal set out above reflects this fact and would be an appropriate response to the requirements of transparency, rigour, democracy and participation by parliamentarians and the components of the federation — the provinces.

The trend of the political climate is to favour democratization of institutions: it will take a bold means of modernization. It is high time the outdated unfettered discretionary powers of the executive were reined in. The Prime Minister’s exclusive power to appoint justices to the Supreme Court and appeal courts is no longer appropriate. We have before us an opportunity to modernize the system; let us act on it.!