"Reforming the Judicial Appointment Process for the Supreme Court of Canada"

Dr. F.L. (Ted) Morton
Professor of Political Science
University of Calgary

Excerpted from Presentation to Standing Committee
on Justice and Human Rights, House of Commons;
Ottawa, April 1, 2004
[words: 1250, excluding appendices]

Until the year 2013--ten years after Jean Chretien has left politics-his hand-picked appointees will still constitute a majority on the Supreme Court of Canada.

Two of Mr. Chretien's appointees-Justices Bastarache and Deschamps-are not scheduled to retire until 2022 and 2028, respectively, presumably long after their benefactor has died.

If the Liberals are elected to another majority government this year, Paul Martin will fill the three vacancies created by the voluntary departures of Justices Arbour and Iacobucci in June, and by Justice Major's mandatory retirement in 2006. This would mean that a party that has averaged about 40 percent of the votes in the last four elections will have appointed 100 percent of the judges.

This kind of "rule-from-the-grave," one-party domination of a country's highest constitutional court is one more indicator of Canada's democratic deficit and how we are being left behind by other modern democracies.

In the U.S., Presidential nominations to the Supreme Court must first be confirmed by the Senate-often controlled by the other party-after public hearings before the Senate Judiciary Committee. At the state level, only three states confer life-time tenure on their supreme court judges. Indeed, 87 percent of American state court judges stand for election at some point in their judicial careers. Two states-New Jersey and Delaware-alternate appointments to their supreme courts between Republican and Democratic nominees.

Defenders of the status quo in Canada would have us believe that democratizing judicial selection is an American disease. Nothing could be further from the truth. European democracies, both old and new, have outpaced the U.S. in democratizing the judicial appointment process. Canada should consider the European models and how they might be adapted to Canada's federal democracy. Specifically, we should consider the following four practices.

1. Term limits of nine years. France, Germany, Italy and Spain all allow a single, nine-year, non-renewable term for judges appointed to their constitutional courts. This term limitation precludes a single prime minister or party dominating the court long after they have been voted out of office. These nine appointments are staggered in three year cycles, so that three new appointments are made every three years
2. Multiple appointing authorities. In France, Germany, Italy and Spain, no single person, office or institution has a monopoly on appointing the judges to the constitutional court. Typically, this authority is shared between the upper and lower houses of the parliament, and the President or Prime Minister.
3. Bipartisan appointments: Judicial appointments to the European constitutional courts usually include both government and opposition nominees.
4. Regional role in appointments. In Germany, a federal state like Canada, half the Constitutional Court judges are appointed by the upper-house (Bundesrat), whose members are appointed by the provincial (lande) governments. Quasi-federal states like Spain and Italy are currently considering reforms that would enhance regional input or representation

If any or all of these were adopted in Canada, our Supreme Court would be much more representative of the diversity of political views that exists in Canada, and no one party or prime minister could monopolize the appointment process.

The most commonly discussed reform in Canada is to have the Prime Minister's nominees for the Supreme Court reviewed by a Parliamentary committee, presumably this committee. I unreservedly support this proposed reform. It would bring transparency and accountability into the appointment process. Unlike the U.S. model of Senate Judiciary Committee hearings, it would not prevent a Prime Minister from making an appointment. It would simply allow members of Parliament, and by extension, the citizens of Canada, to know what kinds of judges the Prime Minister and his party are putting on the Court.

Since different judges have different approaches to interpreting the constitution, this public information would be relevant to voters in federal elections. It would extend the much celebrated but rarely practiced "Charter dialogue" into the House of Commons and out into the public square of Canadian political debate. This is exactly how it should be in a 21st century constitutional democracy such as Canada.

Defenders of the status quo-including the current Chief Justice, all judges associations, and the Canadian Bar Association-raise the bogey men of judicial independence and "politicizing" the court. These are self-serving arguments that simply protect the privileges of the major beneficiaries of the status quo. Beverley McLachlin, for example, is entitled to remain as the Chief Justice, arguably the second most powerful office in Canada, until 2018, by which time she will have been on the Court for a total of 30 years.

Judicial independence is the cornerstone of our centuries old "rule of law" tradition. Nothing is more important in a free society. But its application to final constitutional courts is only partial. Independence is essential to an institution whose function is to APPLY rules impartially-rules that have already been made by another body.

But when a national court of appeal is given the function of constitutional review-of supervising the laws passed by parliament-it is no longer simply enforcing laws; it is MAKING law. And in a 21st century democracy, LAW-MAKING institutions are expected to be ACCOUNTABLE and REPRESENTATIVE, not independent. If you have any doubt about the illegitimacy of an unaccountable law-making institution, you need only look as far as our beloved Canadian Senate.

As for the warnings that public parliamentary hearings would "politicize" the Court, it is a little late in the day for this kind of political prudery. The Supreme Court lost its political virginity long ago. There has been an intense, behind the scenes lobbying for Supreme Court appointments since the month Charter of Rights was adopted.

This is hardly surprising. It is an iron rule of politics that where power rests, there influence will be brought to bear. And let there be no doubt that political power is what the Supreme Court now wields. What is wrong is not that there is lobbying to influence which judges will exercise this power, but that it is done in secret, behind closed doors.

This committee would be doing the country a great favour if it recommends reforms that will bring the Supreme Court appointments process out of the closet. The current system, rather than preventing the politicization of the appointment process, simply drives the politics underground, beyond pubic knowledge or scrutiny. Holding public parliamentary hearings for judicial nominees would simply democratize the process.

But there is no reason to stop here. The Constitution of Canada belongs to the people of Canada; not to the judges, not to the Canadian Bar Association, not to the law schools and certainly not to the so-called "Charter Canadians," which are primarily glorified government-funded rights advocacy groups. The Constitution belongs to all Canadians, and the members of Parliament represent the Canadian people in all their diversity.

Parliament would be well within its democratic mandate to adopt reforms that make the Supreme Court reflect its own political diversity. There is no reason to continue with a system in which a party that receives 40 percent of our votes appoints 100 percent of our judges. It is high time that Canada abandoned the legalistic, autocratic and outdated method of Prime Ministerial monopoly of judicial appointments and join the real world of 21st century democracy.

Appendix 1
In Germany, each house of the federal parliament elects half the justices. In Italy, five justices are appointed by Parliament; five by the President; and five by a judges association. In Spain, four judges are appointed by the upper-house; four by the lower house; two by the government; and two by the Judges Council.

Bipartisan and multi-partisan judicial appointments result in part from multiple appointing authorities (which may be controlled by different political parties); and in part from the requirement of supermajorities (2/3 or 3/5) for judicial appointments by legislative bodies. Since no one party usually has the required number of votes, the parties must cooperate in the appointment of judges. The result is that opposition parties usually are able to place judges on the court in proportion to their numerical strength in the national legislature.

Appendix 2
There can no longer be any doubt about the law-making function of the Canadian Supreme Court. The justices themselves have freely admitted their hybrid role as both rule enforcers and rule makers. As then Chief Justice Lamer said in a 1992, interview, "The Charter has changed our job descriptions." Prior to the Charter, Lamer observed, judges were trained and expected just "to apply" and if necessary, "to interpret" laws. "But with the Charter," he continued:

We are commanded to sometimes judge the laws themselves. It is [a] very different activity, especially when one has to look at Section 1 of the Charter [the reasonable limitations clause], which is asking us to make what is essentially what used to be a political call.

More recently, Justice Bastarache observed that the Court's tendency to "automatically" exclude evidence obtained from detained suspects was "an invention of the court, a principle that was created by the court ... [and] inconsistent with the very wording [of
the Charter]." With respect to the Court's 1999 Marshall decision expanding aboriginal fishing rights in Atlantic Canada, Bastarache said he was concerned with the public's perception "that the Court was very result-oriented and was inventing rights that weren't even in the treaties that were brought before the court in that case." When asked what he meant by "result-oriented," he replied, "It's when your own values and your own personal convictions become the predominant factor in deciding the issue. The result being, of course, what you think the law should be, rather than what you think the law actually is right now as written."

Appendix 3

As early as 1981, in anticipation of the enactment of the Charter, the National Action Committee on the Status of Women (NAC) began to lobby for the appointment of a woman "acceptable to our purposes" to the Supreme Court of Canada. This campaign bore fruit in March, 1982, when Prime Minister Trudeau appointed Bertha Wilson to the Supreme Court. Justice Wilson went on to become the Supreme Court's leading practitioner of judicial activism during the first decade of the Charter.

In 1985, NAC published a report that identified judges as the key variable in Charter implementation and launched a campaign of "influencing the influencers" that included influencing the judicial appointment process. The "influencing the influencers" campaign went into high gear in 1991 when Bertha Wilson retired. Globe and Mail columnist Jeffrey Simpson has described how LEAF mounted an all-court press to try to get Canada's leading feminist legal litigator, Mary Eberts, appointed to replace Justice Wilson. The Eberts campaign "was fought behind the scenes through letters, phone calls and personal representations to the PMO, cabinet ministers and officials in the Department of Justice."

Shortly after Justice LaForest retired in 1997, it came to light that ÉGALE, Canada's leading gay rights advocacy group, had been given the Chretien government's short list of replacements and was actively lobbying for a new judge who would be more supportive of their litigation campaign. A month later, a francophone lawyer from New Brunswick, Michèle Bastarache, was appointed to the Court. Less than a year later (April, 1998), he joined a majority of the Court in the Vriend decision, a major constitutional victory for gay rights and ÉGALE.