Rothstein – the Selection Process

The Membership of the Supreme Court of Canada

The Court’s makeup is shaped by law and convention. Under section 6 of the Supreme Court ActR.S., c. S-19, s. 6; 1974-75-76, c. 19, s. 2, At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Québec or from among the advocates of that Province. This is to ensure that the court has a working majority of those trained in the civil law of Québec to deal with appeals under such law.

By convention, Ontario has an equal number of judges to the Québec figure. The remaining three seats on the court are drawn from the rest of Canada, two from the provinces west of Ontario, one from the provinces east of Québec. There has never been a Justice from any of the three territories, but logically, such an appointment would fill one of the Western seats. Nor has there ever been an appointment from Canada’s aboriginal peoples, a gap which has led to both lobbying and criticism by the Indigenous Bar and the Assembly of First Nations.

The Selection ProcessA good overview is found in background materials for the University of Toronto symposium

Historically, constitutional authority appointing Supreme Court judges rests with the federal Cabinet by way of Order in Council. It has traditionally been regarded as a Prime Ministerial decision, although the mechanics of assembling a list of qualified candidates has been the responsibility of the Justice Minister.

Over the last twenty years, there has been increasing criticism of a lack of transparency in the system of appointment: the criticism has not been levelled at candidates considered to be unqualified, but rather at the way in which candidates were chosen and then announced – given the increasing importance of the Supreme Court’s decisions, a number of political and academic critics argued that the traditional system was flawed. The arguments reached Parliament in an exchange between Preston Manning and then Deputy Prime Minister Herb Gray arguing for more democratic input into the processA full bibliography of the literature was produced for a recent University of Toronto symposium.

By the early years of this decade, the criticism had become so broad that Prime Minister Paul Martin in his first election pledged to develop a more open and transparent approach.

Parliamentary consideration of the issue resulted in a report from The Standing Committee On Justice, Human Rights, Public Safety And Emergency Preparedness, remarkable for its lack of agreement between the members of the various political partiesThe Conservative members of the Committee (including Vic Toews) made four recommendations:
RECOMMENDATION 1: There must be substantive input from all the provinces and territories into the compilation of a list of suitable Supreme Court of Canada nominees. The input from the provinces and territories at this stage can be confidential and does not need to be made public.
RECOMMENDATION 2: There must be a public review of a short list of the nominees before a parliamentary committee.
RECOMMENDATION 3: There must be Parliamentary ratification of the chosen nominee. The form of ratification must not infringe on the constitutional right of the Governor-in-Council to make the actual appointment.
RECOMMENDATION 4: Amendments to legislation must be made so that the appointment process becomes mandated.

This resulted in a presentation to the Ad Hoc Committee on Supreme Court of Canada Appointments by Justice Minister Irwin Cotler on the candidacies of Justices Abella and Charron. The candidates themselves did not appear, just the Minister.

The Ad Hoc Committee consisted of seven parliamentariansDerek Lee, Liberal MP for Scarborough-Rouge River
Sue Barnes, Liberal MP for London West
Denis Paradis, Liberal MP for Brome-Missisquoi
Vic Toews, Conservative MP for Provencher
Peter MacKay, Conservative MP for Central Nova
Richard Marceau, Bloc Québécois MP for Charlesbourg
Joe Comartin, New Democratic Party MP for Windsor-Tecumseh and two non-political, legal expertsJulian Porter, Law Society of Upper Canada
Chief Justice of the Federal Court of Appeal John Richard, Canadian Judicial Council. Following the hearing it released a report on its assessment of the candidates.

Chief Justice Beverly McLachlin has expressed concerns about any new process undermining the independence of the court. Before his appointment as Justice Minister Vic Toews took issue with this view, arguing that there should be greater public scrutiny.

The current hearing certainly does not appear to be the last station in the development of a new system of scrutiny. Yet it has engendered criticism that it compromises the independence of the court. The President of the Canadian Bar Association Brian Tabor in a press release, Globe and Mail opinion column, and a letter to the Rt. Hon. Stephen Harper Prime Minister of Canada expresses strong reservations and suggests a process involving a televised interview that does not raise the issues of separation of power so directly as is done by a parliemntary hearing.

Thus the appointment of Justice Rothstein is likely to be historic, not because of his personal qualities – he is eminently qualified – but because of the questioning he will undergo on February 27, 2006.