The issue of judges’ appointments to the Supreme Court of Canada has come to the foreground of Canadian politics in recent years. The Supreme Court is afforded great power within Canada, including the ability to strike down law produced by democratically elected legislatures. Therefore, the method of selection for the Supreme Court is absolutely critical to Canadian democracy. Scholars have suggested reforming Canadian Supreme Court appointments. This paper will analyse alternative ways of selecting Canada’s Supreme Court judges and make an argument in favour of retaining current practice with a few modifications.
In order to establish the best method, one must have a way of identifying it. There are few greater principles in Canadian politics than judicial independence. The Constitutionally guaranteed principle “ensures that the courts guard our Constitution, the Rule of Law, equality and the democratic process” (Johnson, Remarks to the Committee). Judicial independence is divided into two categories: institutional independence and decisional independence. In order to have an effective top level court, judicial independence in both its forms must be enforced.
Alternative appointment processes have been heavily scrutinised for their potential to politicise the selection process, thereby dissolving judicial independence. Scholars argue that US-style confirmation hearings will lead to qualified candidates excluding themselves from consideration (Peach, 2005).
Canada at Present
Judges of the Supreme Court of Canada are appointed by the Governor General upon recommendation by the Prime Minister. The Prime Minister, in turn, consults with her Cabinet. The Prime Minister’s selection is made based upon a shortlist provided to her by the Minister of Justice with input from the relevant law society.
By the Supreme Court Act, candidates must have been a member of a provincial or territorial law society for at least ten years, or have served as a judge in a superior court. Additionally, at least three of the nine Supreme Court judges must come from Quebec. This is often justified due to Quebec’s unique utilisation of civil law, unlike the other provinces, which utilise common law instead. Interestingly, though representing one-third of the Supreme Court, Quebec represents only 23% of the Canadian population (Statistics Canada, 2013). By convention, the remaining six appointments are split between Ontario (three), Western Canada (two) and Atlantic Canada (one).
In Canada the judicial branch is independent of the executive and legislative branch – that is, it has institutional independence. The justice system also enjoys decisional independence, most notably in the Supreme Court. Judges are appointed until the mandatory appointment age of 75, and their remuneration is controlled by the Judicial Compensation and Benefits Commission. Through this process the legislative and executive branches cannot influence judges’ decision making through threats of reduced salary or termination.
Canada’s system has been criticised for essentially three reasons. First, there is much confusion in the Canadian public as to how the appointment process works, with even a fair number suspecting that there is political interference. Secondly, due to the geographic considerations in the process, many worry about the effect of Provincial politics on the shortlisting of candidates. Thirdly, there has been a history of inconsistent consultation of Prime Minister (Johnson, Remarks to the Committee).
Amongst developed countries, there is great variation on the selection of judges for the highest court. In the US, their Senate holds the final decision making power in confirming or denying the President’s candidate. While legislative approval is generally a formality, there have been recent notable cases of Senate confirmations going awry in the cases of Robert Bork and Clarence Thomas. In the age of mass media, candidates may be subject to an avalanche of questions concerning their personal life.
The US-style senate confirmation mechanism is criticised for giving qualified candidates a reason to withdraw their candidacy. However, even if all the best candidates made themselves available, the President does not select the best candidate. They select the best Senate-confirmable candidate. If the Senate and candidate have strongly opposing political views, then the confirmation can degenerate into a virtual inquisition, and quite literally means that the judiciary answers to the legislature. This severely undermines the judicial independence in the selection process as the President must make a political calculation of who the best candidate is that will also pass Senate confirmation, and also reduces independence from the legislature.
In Switzerland, Austria, and Germany the national assemblies vote to nominate members of their constitutional courts. For Germany, this practice means that the states are involved in the appointment process because the members of Germany’s upper house the state governments. While there have been calls for greater Provincial involvement in Canadian Supreme Court appointments, Carl Baar warns,
Experiences in other federal systems thus do not impel Canada to the kind of provincial role in selection of Supreme Court justices that was embodied in draft provisions of the Meech Lake Accord. While the Accord provisions did not provide as widespread and continuing participation for the provinces as the provisions in West Germany’s Basic Law provide for its state governments, they did authorize a much more substantial provincial roles (both in its constitutional status and in the range of activities it involved) than is characteristic of any of the world’s other federal systems. And unlike the West German provisions, the Meech Lake Accord kept judicial selection completely outside parliament (1991).
In 2009, the United Kingdom implemented their Supreme Court that had been established by the Constitutional Reform Act 2005. Here, judge candidates are selected by an independent selection commission of several judicial committees. Once the selection commission has arrived at a consensus for one candidate, it then provides the name to the Lord Chancellor. The Lord Chancellor is then required to consult with all the politicians and judges that the commission consulted in their selection of the candidate. The Lord Chancellor is given three rounds in which to accept a candidate. If the Lord Chancellor rejects a candidate, then the selection commission will bring a new name forward in the next round. If the Lord Chancellor asks the commission to reconsider, then the commission may present the same person again, or provide a new name. The Lord Chancellor must accept the name put forth in the third round, if they have not already accepted a candidate in a previous round. The Lord Chancellor then forwards this recommendation to the Prime Minister. The Prime Minister is then required by law to recommend this name to the Queen for appointment, and may not nominate anyone else.
The plethora of international selection processes in use appears to provide Canada with ample reform options. One must be cognisant, however, of countries’ political cultures and their effect on shaping the process. In order to maximise the quality of the ultimate appointee, and legitimise the process in the eyes of the public, one must be careful to fine tune the process based upon the particular country’s political climate.
Canada is a parliamentary democracy
There is a great consensus amongst scholars that judicial independence is superior in an appointments process than an election process (Geyh 2003; Tarr 2003).
Baar, C. (1991). Comparitive Perspectives on Judicial Selection Process. Toronto: The Ontario Law Reform Commission.
Canadian Bar Association. (2004). Supreme Court of Canada Appointment Process. Canadian Bar Association.
Freund, P. (1988). Appointment of Justices: Some Historical Perspectives. Harvard Law Review, 1146-1163.
Geyh, C. (2003). Why Judicial Elections Stink. Ohio State Law Journal, 43-80.
Johnson, W. (2004). Ensuring Supreme Confidence in Judicial Appointments. Policy Options, 41-45.
Johnson, W. (n.d.). Remarks to the Committee. Retrieved from The Canadian Bar Association: http://www.cba.org/cba/news/pdf/scc_johnsonremarks.pdf
Peach. (2005). Legitimacy on Trial: A Process for Appointing Justices to the Supreme Court of Canada. Regina: University of Regina.
Ref re Independence and Impartiality of Judges of the Prov. Court of P.E.I., 24778 (The Supreme Court of Canada September 18, 1997).
Ref re Remuneration of Judges of the Prov. Court of P.E.I., 24508 (The Supreme Court of Canada September 18, 1997).
Statistics Canada. (2013, November 25). Population by year, by province and territory. Retrieved from Government of Canada: http://www.statcan.gc.ca/tables-tableaux/sum-som/l01/cst01/demo02a-eng.htm
Supreme Court Act, Revised Statutes of Canada (1985, c. S-26). Retrieved from Department of Justice Canada: http://laws-lois.justice.gc.ca/eng/acts/s-26/
Tarr, A. (2003). Rethinking the Selection of State Supreme Court Justices. Williamette Law Review, 1445-1470.
Yahya, M., & Stribopoulos, J. (2007). Does a Judge’s Party of Appointment or Gender Matter to Case Outcomes?: An Empirical Study of the Court of Appeal for Ontario. Osgoode Hall Law Journal, 315-363.
Ziegel, J. (2006). A New Era in the Selection of Supreme Court Judges? Osgoode Hall Law Journal, 547-555.