Hearings for Court of Appeal Nominees

Recently, the chief justice of Canada, The Honourable Robert Wagner, suggested that appointments to the appellate courts might beneficially echo the process for appointment to the Supreme Court of Canada, with the introduction of legislative hearings into the nominee. As reported in The Globe and Mail, the chief justice argued that public nomination hearings would add to the transparency that he is seeking to bring to the judicial process and would increase trust in the judiciary; he explained, “the best way to avoid bias and prejudice is to inform the people.” Based on the process for SCC nominees, is this idea worth the candle?

What have we learned about the value of the interviews an all-party parliamentary panel (comprised of the House of Commons Standing Committees on Justice and Human Rights and the Senate Standing Committee on Legal and Constitutional Affairs, along with representatives of parties with seats in the House) holds with the prime minister’s Supreme Court of Canada nominees since they were initiated in 2006? (Not all nominees since then have been subject to the questioning, but the first few and the last three have been.)

It is true that the fear expressed by some (I include myself) when these question and answer sessions were instituted, that they would become partisan and place nominees in untenable positions, such as being pressured to announce how they would rule on a particular matter or to explain specific decisions they might have made if they had previously held a judicial appointment, has not occurred. The partisanship and ugliness that too often accompany Senate Judiciary Committee hearings in the United States has, so far, not arisen, perhaps because our politics tends not to be so ugly or because members of the committee are not allowed to ask certain questions, such as about matters that might come before the court.

The power to appoint SCC resides in the Governor-General-in-Council under section 96 of the Constitution Act, 1867; in practice, however, it is the prime minister who makes the selection from a list presented by a selection committee, which has consulted widely, primarily in the legal community, and on the advice of the attorney general/minister of justice. (For an example of the consultation by the selection committee, see the Justice Committee Report relating to the process that culminated in the appointment of Justice Malcolm Rowe.) When the PM has announced his (potentially, anyway, her) choice, the parliamentary committee holds the question and answer session. The PM then recommends the nominee to the federal cabinet. (A similar process occurs for appellate judges who are also appointed by the Governor General; other than for chief justices and associate chief justices, the minister of justice makes the recommendation to the federal cabinet.)

While there may be rumours about individuals being considered for appointment, the process is confidential and the names of unsuccessful candidates are not revealed. (There have been at least two exceptions: the short list including Justice Nadon leaked; the second was when Chief Justice Wagner was appointed and there was a leak that another judge had been then Minister of Justice Jody Wilson-Raybould’s preference. However, this appears to have been related more to the dispute between the PM and the minister of justice over the SNC-Lavalin affair rather than the judicial appointment process.)

In other words, while there may have been widespread consultation about potential nominees, and so the successful candidate will have been subject to a deliberate or inferential process of comparison with other candidates, members of parliament or of the public are presented with only one name and do not have the opportunity to decide whether someone else would have been “better”. I say this not to be critical because the confidentiality serves a purpose, since most candidates are unlikely to want it known that they were not successful. Nor should there be a temptation to mount a public relations campaign, although as possibly educated guesses about other names are publicized, as they are, it sometimes seems that PR companies have been busy.

That aside, once a parliamentary committee has the opportunity to have a question and answer session with the nominee, the reality is that that individual has effectively been selected. The committee makes a report to parliament; however, unlike the American system, neither committee nor parliament has the power to pass a binding vote on whether the nominee should be appointed. So far. all nominees who have appeared before a committee have been appointed to the court, and that exception was not “rejected” by the committee, but held to be ineligible by the Supreme Court of Canada for not meeting the requirements for Quebec judges.

Erin Crandall and Andrea Lawlor found that at least as of 2014 (when the hearing process was abandoned by Prime Minister Harper), most people learned about the nominee and the hearings through media reports and these tended to “emphasize conflict” in various ways. Crandall and Lawlor wrote in Canadian Parliamentary Review as follows:

It has been pointed out that these parliamentary hearings provided a unique opportunity for Canadians to get to know members of the Supreme Court before they took their position on the bench. However, when you consider that most people would have learnt about the process and content of these hearings through the media, the evidence supporting this laudable objective is less than convincing. The first committee hearing, with Justice Rothstein, was certainly the high water mark in terms of depth of media coverage. However, the educative value of the new process, at least as measured by media coverage, appeared to decrease over time. Admittedly, this may be a function of the weakness of the content produced by the committee process itself, where MPs tended to ask questions of little substance. The fact remains, however, that media coverage over this nearly decade of appointments was not especially notable for the information it provided on either the judicial candidates or the appointment process. (citations omitted)

Realistically, we should not expect to learn anything of substance about the nominee that isn’t available elsewhere. Those who watched the hearings of the last three nominees (and ultimately appointees), Justices Malcolm Rowe, Sheilah Martin and Nicholas Kasirer, might have received a glimpse into these three individuals as exactly that, individuals, but probably not a great deal into their views as judges. To be sure one might get a peak behind the curtain and particular nominees may have more difficulty than others. In 2013, Kirk Makin compared how Justice Andromache Karakatsanis and Justice Michael Moldaver handled their joint session, with the former “confidently surfing a wave of questions” and the latter facing difficult questions about his lack of capacity in French and his reputed tough line on the Canadian Charter of Rights and Freedoms in criminal law cases.

For the most part, the “transparency” tells the public whether the nominee has a sense of humour (something Justice Martin was not shy to reveal), whether they speak well, whether they are able to avoid answering awkward questions if there are any (such as faced by Justice Rowe, a white man at a time when diversity is said to be a major consideration for appointment; he suggested that his background as “the son of a fisherman from a small outport village was also a type of diversity” or Justice Kasirer telling the committee that this is a good stage in his life for him to join the Supreme Court).

Should we expect something more dynamic if this process is extended to the appellate courts? And is that what we want? Many of the answers nominees give are, not surprisingly, more or less generic, avoiding extreme or specific positions. Even questions about how a nominee actually reaches decisions (or would if they come from private practice), which could be illuminating, would likely be answered generally. The question and answer sessions may provide some background about the court and the many law students who attend have a special opportunity to see the process in person (one might add that many of the SCC judges have visited schools and have answered questions from students, with much the same results or actually have been at times slightly more open in their answers).

Indeed, given Chief Justice Wagner’s suggestion, it is worth noting a critique of his own performance during the question and answer session, by (now) Dean Adam Dodek, who suggested in a Globe and Mail commentary, that since the first hearing “the hearings have since denigrated into a legal equivalent of a Seinfeld episode: a hearing about nothing – or at least nothing of legal significance”. Furthermore,

This reached a nadir last year, when Justice Richard Wagner refused to opine on the “living tree” doctrine of constitutionalism, which goes back to the 1929 Persons Case. The doctrine is perhaps the most famous and broadly accepted doctrine in Canadian constitutional law. That Justice Wagner refused to even say something anodyne about such a general and widely accepted doctrine showed the utter lack of substance to the process.

As far as the hearings are concerned, things are much the same today.

As much or more would be gained by perusing the nominees’ applications, which are available on line (see Rowe, Martin and Kasirer). More would be gained from decisions they wrote as judges or even the bottom line of decisions in which they concurred and in some cases, including Justices Martin and Kasirer, from their academic and other writing.

Granted, it is easier to hear from the nominee than to read even the nominee’s own writing; it is also possible, although unlikely, that at this late date, we find that the nominee has difficulty in expressing thoughts when they don’t have a great deal of time to think about them (not that the questions are particularly surprising).

Much as I question the value of these question and answer sessions, I also would not want them to descend into the arena in which the American system operates, nor — a rather more significant and unlikely development — would I want to see constitutional changes that give the committee greater power to approve or reject a nominee.

Former Canadian supreme court judges expressed concern in a Globe and Mail article about how the American system has developed. Speaking of the Kavanaugh hearings, former justice Marshall Rothstein said, “‘I hope that the process in Canada doesn’t go where this one has gone … I can’t think of a worse way for somebody to be elevated to the Supreme Court of any country’” and former justice John Major commented, “there were ‘circus elements’ to the hearings and [they] should serve as a warning for Canada. ‘That’s such a disgraceful-looking performance that it should drive the Supreme Court of Canada away from it.'”

(On a slightly different note, former justice Frank Iacobucci thought that Justice Kavanaugh’s conduct — his “animus” towards the Democrats — did not bode well for the Supreme Court of the United States, while Marshall Rothstein described some of Justice Kavanaugh’s answers as going “a little overboard”, but understandable given the pressure he was under. One would hope that Justice Kavanaugh’s conduct during the hearings might well result in the unusual disqualification, or more likely withdrawal, of a Canadian judge responding to questions from a parliamentary committee in similar fashion.)

It is the case that the hearings are another source for the media to convey information about the nominees, but it is generally superficial. Extending the question and answer sessions to appellate court nominees might provide a slightly more nuanced view of the individuals involved, but given the numbers and frequency of appointments, does the benefit warrant the expense and energy involved? And one might expect the novelty to wear off even more easily than with the far fewer hearings for the SCC. On the other hand, it is also possible, although one hopes not, that the gentility that has characterized the hearings to date might also wear off.

The hearings are more form than substance and without forcing nominees into unsuitable statements about the positions they would likely take in cases they might hear, thus raising concerns about judicial independence and ignoring that decision-making is contextual, cannot be about substance. There is nothing wrong with providing more information about the process of appointing judges and of publicizing applications, for example. But rather than risking an eventual decline in the non-partisanship of the hearings, for the little benefit, extending them to appellate judges does not seem to be the best way to bring transparency and trust to the judicial system.

Better to focus on an explanation of decisions in ways that can be understood by those less knowledgeable about law and above all, by the provision of assistance to those who need it.