Trudeau under fire for denying MPs a role in picking Supreme Court judges

Theglobeandmail.com
Aug. 2, 2016
By Steven Chase

Opposition parties say the Trudeau government’s new method for picking Supreme Court judges is elitist in that it cuts elected members of Parliament out of a direct role in selecting potential candidates.

The Liberals on Tuesday overhauled the system for choosing people to sit on the highest court in Canada, creating an advisory board to which the Prime Minister’s Office appoints only three of the seven members - none of whom are sitting MPs. The four others are nominated to the board by the legal community.

Conservative justice critic Rob Nicholson and NDP Leader Tom Mulcair said on Tuesday that Parliamentarians deserve an instrumental role on the advisory board because they are accountable to the voters and can give a voice to Canada’s regions in the discussions.

The new board members are appointed for five years. Their first task is to draw up a short list of candidates for Prime Minister Justin Trudeau to replace Justice Thomas Cromwell, who retires from the court on Sept. 1.

Qualified Canadian lawyers or judges will be able to put forward their names for consideration, and the government will accept applications for the job on the highest court until the end of the day on Aug. 24.

The board will review all applications, and its short list of three to five recommended names, due in late September, will be based on this pool of applicants only.

The head of the board will be one of the government’s three appointees, and the Liberals tapped former Progressive Conservative prime minister Kim Campbell for this role.

MPs were involved in selecting some, but not all, of the Supreme Court appointments over the past decade. The Liberal government of Paul Martin created a role for MPs, and the Harper government relied on an all-party committee to draw up shortlists in some cases. The Conservatives also made some appointments unilaterally.

“I believe there was a legitimate role for MPs to play and I think it’s unfortunate they’ve been removed,” Mr. Nicholson, who was justice minister in the Harper government for seven years, said of the new process. “They come from across the country, they represent all political parties. They are answerable in elections [and] directly elected by Canadians.”

The Liberals said they want a non-partisan approach to generating candidates. Asked to explain the absence of MPs on the advisory board, a spokeswoman for Justice Minister Jody Wilson-Raybould offered a prepared statement that reinforced this.

“The government feels that the task of identifying suitable candidates for appointment should be given to an independent and non-partisan advisory board,” the statement said.

The Liberals noted that MPs will be able to quiz Ms. Wilson-Raybould about the process and that opposition party justice critics as well as Parliamentarians on the Commons and Senate justice and legal affairs committees will be consulted once a short-list has been drawn up.

After the nominee is announced, MPs will also have a chance to ask the Justice Minister, and Ms. Campbell as chair of the advisory board, to explain the selection.

Finally, Parliamentarians on the Commons and Senate justice and legal affairs committees will be able to ask the nominee questions - but through a legal scholar who will moderate a question-and-answer session.

Mr. Mulcair said this consultative role does not suffice, calling it a “fig leaf” substitute for a real role for MPs. “An accountable and transparent process begins with the institutions of our democracy, and first and foremost that means Parliament,” Mr. Mulcair said.

“Excluding Members of Parliament is also a way of excluding regions and other points of view. If you have no opposition MPs and no other points of view, it’s a false start.”

Peter Russell, a political science professor emeritus and constitutional scholar at the University of Toronto, said he is neutral on whether MPs should be involved in drawing up the short list of Supreme Court candidates. He said some democratic countries give MPs a key role and others do not.

Prof. Russell added that in his experience, members of Parliament have not contributed much to the efforts to find candidates.

“I’ve watched the process and I will be very frank: I don’t think MPs bring a lot to the table. I really don’t,” he said.

He said there is a long-standing expectation in Canada that Supreme Court appointees will tend to reflect the government of the day.

Mr. Nicholson said he is also concerned about the possibility that Justice Cromwell’s retirement might leave the Atlantic provinces without representation on the Supreme Court bench.

Justice Cromwell comes from Nova Scotia, and convention dictates that his successor come from Atlantic Canada. Ottawa is not limiting the search process to this region, and the board will accept nominations from across the country.

“This new process apparently doesn’t limit the search process to Atlantic Canada ... I would have expected and supported the next Supreme Court justice coming from Atlantic Canada,” Mr. Nicholson said.

The Newfoundland government signalled its unhappiness on Tuesday.

“I am disappointed that the convention related to regionalism will no longer be followed,” Newfoundland Justice Minister Andrew Parsons said in a statement. “The fact that there is no longer a guarantee that there will be a justice from Atlantic Canada is concerning particularly since we live in a country that is noted for its diversity.”