Liberals to allow self-nominations for Supreme Court vacancy

Theglobeandmail.com
July 20, 2016
By Sean Fine

The Liberal government is expected to let people nominate themselves for the Supreme Court job that becomes vacant on Sept. 1, with potential candidates asked to write in on their own behalf and explain why they deserve to be on Canada’s highest court.

The government will position the move as an attempt to open up a secretive process and make it less elitist, as it did with self-nominations for the Senate earlier this year, a Liberal source said. The names of the self-nominated will be given to a new selection committee the Liberals will establish to keep Prime Minister Justin Trudeau’s promise of greater transparency and public involvement in the appointment process.

The committee, which will include people from the legal profession and the public, will be described as independent and will winnow down the names to a short list for the Prime Minister, multiple sources told The Globe and Mail.

But behind the scenes, and with no public announcement, the government has already established a small committee of cabinet members, including Justice Minister Jody Wilson-Raybould and Government House Leader Dominic LeBlanc, to come up with a short list of names for the Prime Minister, a source says. It is not clear what the relationship between the two committees will be, or whether one group’s recommendations will get priority, or how the two groups’ lists will co-exist.

The appointment is Mr. Trudeau’s first opportunity to shape the country’s highest court and a chance to redefine the appointment process. It comes after the retirement of centrist Justice Thomas Cromwell of Nova Scotia, which takes effect on Sept. 1.

The moves are partly a response to the Nadon affair under the Stephen Harper government, in which the Supreme Court declared in an unprecedented ruling that Mr. Harper’s 2013 appointee, Justice Marc Nadon, lacked the legal qualifications to join the top court. The controversy highlighted secret manipulations of the selection process. After The Globe revealed that four of the six people the government asked a Parliamentary committee to review were ineligible, the Conservatives complained of leaks and ended Parliament’s involvement.

Putting members of the public on the selection committee will make it similar to the process that existed under the Liberal government of Paul Martin in 2004 and 2005. Mr. Harper modified the selection group, making it a committee of MPs, and he appointed the final three judges of his tenure (Clément Gascon, Suzanne Côté and Russell Brown) with no Parliamentary participation.

Before 2004, Supreme Court judges were appointed after private consultations between government and the legal community. This would be the first time candidates could formally apply for the job.

The Liberal government has been slow in changing the way Supreme Court judges are named. Justice Cromwell publicly announced his retirement in March. The fall session of the Supreme Court begins on Oct. 3. Documents for cases usually arrive two weeks before. According to sources, Chief Justice Beverley McLachlin has told the government she expects a full complement of nine judges, and Ms. Wilson-Raybould has promised a new one in time for the fall session. During and after the failed Nadon appointment under Mr. Harper, the court went 10 months with just eight judges.

The government’s 11th-hour move to change the appointment process mirrors its slow pace on judicial appointments in federal courts (such as top trial and appeal courts in the provinces). Several judicial advisory committees that screen candidates have been without members for months, and the Liberals have named just 15 judges since their election last fall.

The details of the self-nominating process are not clear; for the Senate, organizations could also nominate people.

Richard Devlin, co-author of a forthcoming book on judicial appointment processes in 19 countries, says he is skeptical about whether the government is truly aiming for greater openness.

“I think the idea of a subcommittee of the cabinet having a heavy hand in this process would be problematic,” said Mr. Devlin, a professor at the Schulich School of Law in Halifax. “The government is only one of the legitimate stakeholders in the pursuit of an inclusive and representative judiciary. I think this is just a shell game. It’s smoke and mirrors. It would be the Liberal government saying we’re changing the process but more symbolically than functionally.”

Joanne Ghiz, a spokeswoman for Ms. Wilson-Raybould, said the government has not announced a process yet, “so you’ll have to stay tuned.”