(An edited version of this post, originally published here, is now located on Re-View From the Bench.)
Justice Louis LeBel of the Supreme Court of Canada (SCC) is 75 years of age and by law must step down from the Bench on Sunday. Yesterday, the federal government announced their choice of his successor: Suzanne Côté, partner and head of litigation at Osler, Hoskin and Harcourt in Montreal. With 34 years of experience in commercial and civil litigation and in public law, Côté has been hailed as one of the 25 best women lawyers in Canada. We don’t know her perspective on the role of judges, but her legal qualifications for the appointment are impeccable. That she becomes the fourth woman out of nine on the Bench is an added bonus.
That the government chose someone with no prior judicial experience is not cause for alarm. The legislation provides for appointing lawyers directly from the Bar and the practice is not unprecedented. Prime Minister Brian Mulroney appointed Toronto civil litigator John Sopinka to the SCC in May 1988. At that time, he had been in private practice for 28 years and had an outstanding reputation as a civil trial lawyer. Similarly, Prime Minister Jean Chrétien appointed Ian Binnie to the Supreme Court in January 1998, after 32 years as a civil litigator and with significant legal service for the government. Such lawyers bring to the highest Court in the land much-needed expertise in the practical day-to-day realities of civil and commercial litigation. Both Justice Sopinka and Justice Binnie made outstanding contributions to the Supreme Court.
What is disturbing is the “process” for appointing Justice Côté. No one disputes that an SCC appointment is within the purview of the Prime Minister and his Minister of Justice. Under Prime Minister Chrétien, however, a process was created by which an Advisory Committee of Members of Parliament, legal experts and others developed a shortlist of candidates suitable for appointment to the SCC. With this advice at hand, the government made its choice. In 2006, Prime Minister Harper himself made it a condition of selection that the proposed appointee appear before a nationally televised all-party committee of Members of Parliament and legal experts to answer questions about their legal experience and perspective. Justice Marshall Rothstein was the first appointee to take part in this public hearing. Later Justices Thomas Cromwell, Michael Moldaver, Andromache Karakatsanis and Richard Wagner did the same. The process was intended to increase openness and transparency, and to inform the public about the judges themselves and why they were appropriate for appointment.
In June 2014, Prime Minister Harper and Justice Minister Peter MacKay shut down that process. When the SCC rejected Justice Marc Nadon as ineligible for a Quebec position on the Supreme Court, Harper and MacKay had a snit. Although under a duty to uphold the law and not malign the courts, they engaged in an unprecedented attack on the Chief Justice of the SCC which was widely regarded in the legal profession and across the country as totally unseemly. They also refused to recall the Advisory Committee to help find and vet the new appointment. On their own, without parliamentary input, and without any Committee hearings, they appointed Justice Clément Gascon of the Quebec Court of Appeal to the vacant Quebec place on the Bench. He was sworn in on October 6th, after the Quebec position had been vacant for a year. Harper and MacKay have done the same thing again. Made another Quebec appointment at the last possible moment, with no parliamentary participation, nor any public knowledge about the new appointee. Respect for process, transparency and accountability have gone the way of the dodo. Secrecy is again the name of the game.
In the meantime, the federal government has dragged its feet on the timely appointment of new judges to all federal courts across the country. At present, there are 61 vacant federal judicial positions across Canada waiting to be filled. This includes 23 judges in the Ontario Superior Court, five judges in the Ontario Unified Family Court, three in the Ontario Court of Appeal, and five in the Federal Court of Appeal. The Chief Justice of Ontario is the highest-ranking judge in Ontario. After Chief Justice Warren Winkler stepped down in December 2013, the position remained vacant until the federal government finally appointed Chief Justice George R. Strathy on June 13, 2014, over five months later. Who needs a Chief Justice anyway?
It should be obvious that judges are essential for access to justice within a reasonable time. Delay is endemic in the courts. So why not make timely appointments? Maybe the government can’t find enough judges of their own ideological persuasion to fill the posts. Or maybe the non-payment of judicial salaries contributes to the much-vaunted federal budget surplus. Or maybe, since the Provinces are responsible for administering justice, the public does not notice that the federal government is not carrying its weight in the system. Whatever the reason, it seems that this “law and order” government does not value public access to courts and to the judiciary. A government that valued justice and respected the courts would want a Bench working to capacity with as little burn-out as possible. That’s not happening, and it hasn’t for some time.