The Appointment Process for the Supreme Court of Canada: Assessing the Goals and Performance of the Supreme Court Selection Panel by Gayle Leith A Thesis submitted to the Faculty of Graduate Studies of The University of Manitoba in partial fulfilment of the requirements of the degree of MASTER OF ARTS Department of Political Studies University of Manitoba Winnipeg Copyright O 2009 by Gayle Leith THE UNIVERSITY OF MANTTOBA FACT]LTY OF GRADUATE STUDTES COPYRTGHT PBRMISSION TheAppointmentProcessfortheSupremeCourtofCanada: Assessing the Goals and Performance of the supreme court selection Panel By Gayle Leith sub¡ilitted to the F¿rcultY of Gradu¿rte studies of The university of A Thesis/Pr.acticr¡m M¿rnitolr¿ilr¡rirrtialfirlfillrrrentoftlrerec¡rtirenretltoftheclegree of Master of Arts G:rYle LeithO2009 tr¿rernPsdies t/ro¡nr rLr:irAscCsti"i'o,usnn r:hr,g aetsonb tL e(icuùnMågl./ryPa rnontQneodr rtAeosrtlctr)re rUit'oen smi rc,icerrrrnosafiitihyrano 'f (NLse{Aall clcr)io toptoibc l¿se rn¿Lrtnli ldra r tacoor ippeyus btootfisl ethhr irasc tltt: hìaccbossipstry/apocrfntt hcotifis ctuhmis' thesis/¡rracticum. otvaTs'e l¡rrri sesrromele¡irtlytreo fdco lrbt tttc,h tccitO ll¡tprou¡r,rr¡crigoohspet } ¡l:oor$ff ,t¡shr rioisvrta l$rtee,is thsist ull*trl¿.;vrr .sa;lrnr.ed e$rle,rrstitretreannrtc leh¿,ar uart,nhaotillr ¿imzr¿:lrrr¡tl'ie oåbnn ylfayrou bmtelr ortehripetyr ocoodftuplrcyeclictgl ohapt nyotrlr ivgcnolreptri'etl Table of Contents Introduction 1 1,. Executive Appointment and Selection Reform: Defining the Problem 5 5 a. The Background b. The Purpose of Reform 11 2. Appointing Judges to the Supreme court of canada: A Brief History L3 I4 a.Legal Structure of the Appointing Power b. paiterns in Supreme Court Appointments: The Early Years 18 c. The Introductlon of Constraints of the Discretionary Use of the Power of Appointment in the Pre-Charter Period 22 d. The Historical Evolution of the Appointing Power since the Charter: 24 Federalism and the Charter 28 e. Federalism, Partisanship and Ideology 3. The Appointing Power in the Age of Judicial Review: Judges as Legislators 36 a. Democracy and the Charter' Ã L"ft-Wing Perspective 37 b. Conservative Judicial Critics: A Perspective 43 c. The Dominant Role of Judicial Review Reconsidered: Legislative 47 Responses to Judicial Power d. Conclusion: Judicial Review and the Appointing Power' 54 4. Changing Critiques: Contemporary Concerns about the Appointment of Judges to the Supreme Court of Canada 57 s9 a. The Politicization of the Judicial Appointment Process 66 b. Diversity and Merit c. Judicial Accountability and the Independence Doctrine: The Emerging 75 Debate d. The Judiciary and the Accountability Revolution 77 e. Judicial Independence and Democracy 81 5. Towards a Solution: Competing Models of Change 92 92 a. Introduction 95 b. The Constitutional Framework 9l c. Options 98 1. Modified Executive Appointment 101 2. Elections 105 3. Confirmation Procedures 4. Judicial Appointment Commissions 111 IT4 a. MembershiP r20 b. Qualifications 123 c. Criteria 130 d. StatutorY Status 6. The Ad Hoc Committee and the Supreme Court Selection Panel a. Membership 134 1. Political Parties 136 2. Provincial Participation on the AHC and the SCSP 139 3. Judicial Membership r43 4.Legal Membership r46 5. Lay Membership t49 6. Diversity in the Composition of the Advisory Commission r52 7. Summary r57 b. Committee Procedures r62 1. lntroduction t62 2.The "New" Process of Appointment r64 3. Parliamentary Scrutiny of Supreme Court Nominees r61 4. Media Coverage of Legislative Hearings t76 r78 5. Summary 7. Assessing the Impact of the New Advisory Commission and Parliamentary Scrutiny Committee on Supreme Court Appointments 182 8. Conclusion 193 Endnotes 196 2t4 Works Cited Appendix I 222 Appendix II 227 Appendix III 231 1. Introduction 1n2006, the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada ("AHC") became to the first committee to use public multi-party hearings to appoint a justice to Canada's highest Court. In the Prime Minister's words, the AHC was designed to "bring more openness and accountability to the process of appointing people to our nation's highest Courl."l The reform was a striking departure: In Canada and other Commonwealth states such as Great Britain, Australia and New Zealand,judges have long been appointed outside of public view.2 Though conceived of as an interim measure, the AHC has come to form the basis for future innovation of the judicial appointment process. The federal government has now presented what seems to be a new permanent Supreme Court selections process.3 The establishment of the AHC and the concurrent creation of the Supreme Court Selection Panel (SCSP) wanant review to ground more clearly future directions following from these initial steps - which, though seemingly aggressive, remain under-examined in the literature.a The AHC comprised twelve members: MP's numbering five Conservatives, four Liberals, two Bloc Quebecois, and one New Democrat.s The Prime Minister continued to remain pre-eminent in the process, nominating the candidate from a shortlist of three names produced by the previous govemment, and appointing the candidate after the conclusion of the healings.6 In introductory remarks, a limited set of judicial qualities on which the committee questioning was to focus was established by Peter Hogg.7 Furthermore, the committee chamber was open to live broadcast media. After Hogg's remarks and more general comments by the Attorney General, vetting occurred over a three hour period. Generally, the committee members asked non-imposing questions and appeared to be favourably disposed to the nominee.s Withitt the following two days, the Prime Minister directed the Governor General to appoint Rothstein J. to the Court.e When appointing new judges, the elected branches of government enjoy rare moments of direct and formal power over courts. In tum, the interactions of those responsible for judicial selection and those who are selected raise concems for judicial legitimacy. This paper addresses questions that have been raised as Canada moves towards stricter judicial appointments regulation, with still more changes promised for the future. I rely primarily on comparative intemational literature, emerging particularly in the last two decades, on the rise of advisory and nominating judicial appointment commissions and their implications for judicial independence and accountability. Canadian legal and political commentators have not, as yet, made extensive use of this ,"roulce.l0 I begin in Part I by framing the problems addressed by the introduction of the AHC, using comparative literature, reports and reform proposals generated by various legal and academic groups, and other sources to stipulate the goals of selections reform. I begin from the premise that transparency and accountability should be a primary goal of a body such as the AHC,Il and I offel further detail to support this assertion. Further, I attempt to clarify the issues surrounding judicial selection reform of which the AHC's architects have said little. What were the committee's goals, and what are the on-going goals of reform of the judicial appointments process? While it is understood that the Committee was designed broadly to "bring more openness and accountability to the process", it remains unclear what purposes these values selve in the context of selecting new members to the Supreme Court. Further questions are then raised; what is ultimately gained when parliamentarians and the public assume a direct and watchful role in the selection process? And to whom and for what reason(s) should judicial selectors be accountab]e? Part II draws from the literature on judicial selection reform as a matter of institutional concern. Here I trace the historical evolution of judicial selection reform and address the changing criticisms of executive control of the appointment process. In particular, this section focuses on the political role of the Supreme Court and its implications for the appointment mechanism. [n order to understand the reasons surrounding the establishment of the AHC and the subsequent Supreme Court Selection Panel (SCSP), an analysis of the reasons underpinning the drive for reform is necessary. Here it is argued that the public policy-making role of the Court has been over- emphasized and should not be considered the primary variable directing selection reform. Instead, concerns ofpartisanship, independence, transparency and representation guide the process of appointment reform and it is these variables that the AHC and SCSP should strive to attain. Part III examines the various models of judicial selection reform and their applicability in a parliamentary democracy. Here selection models that advance legalistic constraints on official discretion arc analyzed. A conclusion to be stressed is that, despite their popularity as tools of institutional design, such formal constraints do not necessarily contribute to securing good decision-making by the Court. In fact, considerations of more impoltance are the norms of transparency and accountability that are associated with a given decision-making body. For this reason, attention is tumed to approaches of institutional design that encourage the development of accountability and transparency, most notably within the establishment of judicial nominating and advisory commissions. O:nn:::.ls:ues of composition and evaluative cfteria and their impact on judicial selection commissions are addressed. Here it is determined that membership of the commission and the criteria used to determine the suitability of potential candidates must be established and statutorily defined in order for the commission itself to fulfill the mutual goals of transparency, accountability and independence. In Part IV, I assess the AHC and SCSP from the analysis presented in Part III. Here it is argued that the signature feature of the AHC and SCSP was the democratization of the judicial selection process. Furthermore, like many democratization recommendations,l2 it would seem that the overarching goal of the AHC and SCSP was the democratization of the selection process as an end in itself, or as a check on abuses of power. While this goal is retev1nf do1 not address accountability and transparency concems .""tî 1,::tll it behind the establishment and operation of the AHC and SCSP respectively. Thus this chapter attempts to address concerns of transparency and accountability in the selection model itself and identifies how these two committees might have been better structured to pursue these goals. 1. Executive Appointment and Selection Reform: Defining the Problem (a) The Background The Prime Minister's unfettered power to appoint Justices to the Supreme Court of Canada has long been a subject of controversy. Most recently, the problem was elevated to the status of national concern when former Prime Minister Paul Martin announced his support for reforming the appointment process as part of his strategy to effectively resolve Canada's encroaching 'democratic deficit', abuzz-word that has come to properly express a feeling of frustration that full representation of views and public participation in Canada's political and legal institutions are limited. [n December 2003, Martin announced that the government of Canada would consult the Standing Committee on Justice and Human Rights on how best to implement prior review of appointments of Supreme Court judges. Martin's call for refotm was later echoed by all parties of the House of Commons when in October of 2003 the House voted unanimously to support a private member''s motion to authorize the Standing Committee on Justice to 'study the process whereby judges are appointed to courts of appeal and to the Supreme Court of Canada.''3 The task of the Committee was subsequently complicated by the announcement by two sitting justices (Arbour and lacoboucci) that they planned to leave the Supreme Court by the end of the year (June 2004). The Chief justice quickly indicated that she wanted a complete Coram of nine judges to hear the federal govemment's reference on same-sex maniage scheduled to begin in the fall of 2004.The Standing Committee's mandate was thus expanded to include interim recommendations to deal with these appointments in addition to long term proposals for reform. The committee held public hearings in March and April o12004, and released its report in May. The reporl, written by a Liberal Party majority, rejected submissions calling for U.S. style parliamentary hearings for nominees as well as the South African model of public interviews which requires all candidates being considered for a position on the South African Constitutional Court to undergo an intensive interview process wherein the candidates are asked questions pertaining but not limited to shortcomings in their past judicial performance including their handling of the law and in the discharge of their administrative duties as a judge as well as questions that focus on the quality and significance of their past judgments. The Standing Committee also rejected reforms that emulate a model found in some European countries which limits the terms (for example, nine to twelve years) of high court judges and government sharing the appointment power with opposition parties in proportion to the strength of the latter in Parliament. Instead, the committee proposed several minor changes. For the two pending appointments, the committee recommended only that the Justice Minister appear before the committee after the appointments to 'explain' the process by which the current vacancies on the Supreme Court were filled and the qualifications of the two appointees.'o For the longer term, the committee recommended the creation of an advisory committee that would send a list of three to five candidates to the Prime Minister, who would continue to have the final choice of who to select. The advisory committee would include representatives from each of the political parties in the House of Commons, the relevant provincial goverrìments, the judiciary and the legal profession, as well as lay members. Once an appointment is made, the committee then recommended that eithel the Justice Minister or the Chair of the committee appear before a House of