The New Supreme Court of Canada Appointment Process

Last week, Prime Minister Trudeau announced a new process for appointing justices to the Supreme Court of Canada. It will be used to choose a successor for Mr. Justice Cromwell, who retires on September 1st.

The Prime Minister was, and remains, responsible for these appointments. Previously, SCC appointments emerged from a shadowy process which was opaque, undefined, prone to rumours, and in the closet. The goal of the new process is to be open, transparent, accountable, and non-partisan.

The key elements of the new process are that:
1) any lawyer or judge who self-identifies as meeting the criteria may apply
2) an independent, non-partisan Advisory Board will vet applications and develop a non-binding short list of three to five nominees
3) the answers provided to parts of the application questionnaire could become public, and
4) within a month of the appointment of the new Judge, the Advisory Board will file a formal report, including statistics on the number of applicants and recommendations to improve the process.

The remaining steps are not new. The Minister of Justice will vet the nominees with Chief Justice McLachlin, provincial and territorial Attorneys General, relevant cabinet ministers, and opposition justice critics. After that consultation, the Prime Minister will choose a nominee. The nominee will appear before the relevant House and Senate committees for a joint Question and Answer session which, unlike before, will occur before the appointment is formally made.

Objections raised to the new procedure merit comment.

1) The end to geographic representation? In the past, new judges were generally appointed to make sure three were from Quebec, three from Ontario, and one from each of the Maritimes, the prairies, and B.C. That has now changed. Apart from the constitutional need for three Supremes from Quebec (because of the unique nature of Quebec civil law), it seems that future competitions for non-Quebec positions will be nation-wide. This is perhaps justified because the issues coming before the Supreme Court today are less federal-provincial inter-jurisdictional disputes than may have been the case in the past, and relate more to the Charter and other codified laws which have application across the country.

2) The Trudeau government has introduced two new criteria: a) that applicants be “functionally bilingual” and b) that they “represent the diverse nature of the country.” “Functionally bilingual” has been defined as the ability to understand written materials and oral argument without needing direct translation and, “ideally,” the ability to converse with counsel in the language they are using for argument. This is a lower level of bilingualism than “fluency,” and likely reflects the nature of the job where apparently one-third of appeals are conducted in French. In a country officially bilingual, it seems appropriate.

3) “Diversity” extends to gender, sexual orientation, minority representation, and the disabled, and is a widely accepted aspiration for our contemporary Canadian legal system. “Diversity” may well be a more useful criterion for a “representative” Supreme Court today than geography. Inviting any qualified candidate to apply will open up a pool of candidates who may be working below the radar and who, in the past, would never have been sufficiently well-connected to be considered. The Qualifications and Assessment Criteria are all laid out on the internet, including seven defining professional skills and experience, six relating to personal qualities, and three to “the institutional needs of the court.” This is an assurance that only the highest quality candidates will be nominated. The statistics to be made public will tell us the size of the current pool of candidates which will be very interesting, indeed.

4) The lack of MPs in the short-list process? The opposition justice critics will be included in the second stage vetting process, and MPs and senators may question the proposed nominee before final appointment. The new independent Advisory Board is an element of the appointment process adopted for the Ontario Court of Justice in 1989/1990. That Judicial Appointments Advisory Committee has no partisan input at the short-list stage, has been very successful in diversifying that bench, and is applauded worldwide by those interested in the issue. Professor Peter Russell, an expert on courts and judicial appointments, was the first chair of that Committee. He was quoted last week as saying that MPs “don’t have a lot to bring to the table” at that stage. For assessing the qualities required of a judge, he feels it is better to have direct input from the profession and the community.

The first Advisory Board is reassuring. Four members represent the Canadian Judicial Council, the Canadian Bar Association, the Federation of Canadian Law Societies, and the Canadian Council of Law Deans. These are best placed to assess the professional skills of the applicants. Three are “prominent Canadians” chosen by the Minister of Justice. Former Prime Minister Kim Campbell, the chair, ensures the non-partisan nature of the Board. Two others bring a distinctive community perspective, one a professional engineer experienced with community services in Montreal, the other the former Premier of the Northwest Territories and President of the Dene Nation.

I am confident that whoever emerges from this process will be a superb appointment to the Supreme Court. That the Advisory Board can recommend improvements in the process, if any, shows that it is not written in stone and could be modified in the future if necessary. I think the new process an exciting initiative which, in the long run, should achieve its objectives.

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3 comments

  1. Bob S.

    Unless it’s meaningless, “functionally bilingual” is a much higher standard than fluency. Lots of people are fluent in French, but most of them are not fluent in French legal jargon and technical language. One can only gain proficiency in technical legal language in French if one practices in French. I have colleagues in Montreal who are francophones, who speak French at home, but who practice predominantly in English – they have a heck of time maintaining their proficiency in technical French. So how on earth is someone outside of Quebec supposed to attain or maintain that proficiency?

    If you believe that “functionally bilingual” is a lower standard than fluency, than you are asserting that it’s a useless exercise in symbolism (from the Trudeau government? I’m shocked), since someone who meets that standard will not be able to follow technical legal arguments in French, making the exercise pointless. Sure, they can order a cafe au lait, but who cares? In fact, it’s worse than pointless, it will reduce both the quality and diversity of judicial appointments. A typically Trudeauvian improvement that makes things worse.

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