June 23, 2005

The Supreme Court of Canada is one of the most powerful courts in the Western hemisphere. This ought to mean that appointments to the nine-member court should be transparent and democratic, and involve broad input from the constituencies most affected by the court's decisions.

The reverse is true. The Canadian system of appointments is secretive, and appointments rest in the unaccountable hands of the incumbent prime minister and his immediate advisors. He is not obliged to consult Parliament or the provinces before he makes an appointment. There is no confirmation procedure, as there is in the United States, and the prime minister is not required to give any reasons for his choice of candidate.

For more than 25 years, constitutional experts, prestigious committees and newspaper editorials have called for major changes in the system of appointments to the Supreme Court. Regrettably, during their tenure in office, prime ministers Brian Mulroney and Jean Chretien ignored this advice. Presumably, they thought the status quo was fine -- or, more likely, they cherished their appointive powers too highly to be willing to share them with anyone else.

Paul Martin appeared to be different. Even before he became prime minister in 2003, he committed himself publicly to reforming the system of appointments. However, the path to reform is proving to be painfully slow. Still more disturbing is the accumulating evidence that Mr. Martin and Justice Minister Irwin Cotler appear determined to surrender as little of the federal government's existing prerogatives as possible.

In early 2004, Mr. Martin asked the House of Commons Justice Committee to recommend changes to the appointive procedure. The committee heard from many witnesses in March and April 2004 and issued a short report in May of that year.

The four parties represented on the committee differed widely on the details but they all greed that an advisory committee, with strong input from the House of Commons, should play a key role in compiling a short list of candidates to fill vacancies when they arise.

There were two vacancies waiting to be filled on the court. Nevertheless, the federal government failed to act on the report before the federal election was called in June 2004. The vacancies were only filled in August, 2005 with the appointments of Justices Rosalie Abella and Louise Charron. In a token attempt to placate public opinion, Mr. Cotler secured the approval of their nominations from a hastily assembled ad hoc committee of representatives of the four parties in the House of Commons, the Law Society of Upper Canada and the Canadian Judicial Council. It was a farcical procedure that did nothing to promote the goal of serious reform.

On April 8 of this year, Mr. Cotler finally released the federal government's response to the May, 2004 report of the Justice committee. It accepted the committee's recommendation for the establishment of an advisory committee to participate in the selection of future candidates. However, this concession was hedged around with so many restrictions that the advisory committee envisaged in the proposals would simply act as a rubber stamp for the government's pre-selected list of candidates.

Disturbingly, the government's proposals denied the advisory committee any independent role in developing its own list of candidates. Instead, an accommodating justice minister would provide the committee with a list of five to eight names that had been previously vetted by federal officials. The advisory committee's role -- seemingly its only role -- would be to pick three of the eight names and submit them to the PM so the could select one of the names to fill the vacancy on the court.

The federal proposals justified the need to fetter the committee's powers on two grounds. The first was that a vacancy in the Supreme Court may need to be filled at short notice, and that the committee would lack the resources to compile its own list of names in the available time. The short answer to this contention is that House of Commons committees regularly call on outside experts to assist them if such experts are required to complete committee work in timely fashion, and there is no reason to suppose the advisory committee would be any different.

Mr. Cotler's second rationale, reiterated with increasing frequency over the past year, is that the federal government is constitutionally responsible for the appointment of Supreme Court justices and must therefore have confidence in the committee's selection procedure. This reasoning is very weak. Contrary to the impression left by the Justice Minister, the Supreme Court is not entrenched in the constitution, and there is nothing to preclude an amendment to the Supreme Court of Canada Act to provide for the appointment of an advisory committee.

It seems fairly clear from the events of the past year that the Martin administration has lost its appetite for serious reform in the appointive process for members of the Supreme Court. But the decision shouldn't simply be left in the hands of the government. The opposition parties in the House of Commons should marshal their forces to oblige Mr Martin to make good on the commitments he made before becoming PM. Indeed, all of us should be committed to rescuing Canada from the stigma of having one of the least transparent and accountable system of appointments among Western democracies.

Jacob Ziegel is Professor of law emeritus at the University of Toronto.

© National Post 2005