On Thursday, the Conservative government named Suzanne Côté to replace Justice Louis Lebel, who will retire from the Supreme Court of Canada in coming days. Yet Canadians remain in the dark about what, if any, process was used to make this choice.
In recent months, the government said it would make the appointment “promptly,” but it wouldn’t say when. The government said it was consulting “with a wide variety of groups and individuals,” but it wouldn’t say with whom. The government said that the whole Supreme Court appointments process was under “reconsideration,” but it wouldn’t say what that reconsideration entailed.
In fact, Justice Minister Peter MacKay initially participated in an extensive – and public – reconsideration of the process when the House of Commons justice committee studied the matter in 2004, before the Conservatives came to office.
At the time, it seemed that Canada had charted a new beginning with respect to the Supreme Court appointments process. While committee members did not all agree on the specifics of what a revamped process should entail, there was consensus about the principles on which it should be based: transparency, accountability and inclusivity, with provincial, parliamentary and public involvement.
Conservative committee members – including Mr. MacKay – advocated “a greater degree of transparency,” as well as a “public review of a short list of the nominees before a parliamentary committee.” The New Democrats called for “enhancing the open, transparent and democratic nature of the process.” And the Bloc Québécois noted that there was all-party agreement about the need for a new process involving Parliament and the provinces. Liberal members endorsed the committee’s final report, which made eight recommendations designed to “render the appointments process more credible, especially through an appropriate role played by parliamentarians.”
As justice minister, I sought to implement – and even enhance – those recommendations in consultation with the justice committee. The 2004 process that led to the appointments of Justices Rosalie Abella and Louise Charron featured, for the first time, evaluation criteria announced publicly at the outset; a published protocol setting forth the people to be consulted; an advisory selection panel composed of MPs, distinguished representatives of the legal community and eminent public persons; and an ad hoc parliamentary committee where I took questions prior to the confirmation of the appointments, notably about the nature of the consultation process and the way in which the evaluation criteria were satisfied by the nominees. Moreover, the public was invited to participate, the advisory panel was empowered to carry out independent consultations and the ad hoc committee made public recommendations for improvement, the whole refined for the 2005 appointment process that led to the nomination of Justice Marshall Rothstein.
Ten years after those initial changes, however, there has been a serious regression. For example, the process that led to last year’s failed appointment of Justice Marc Nadon featured a diminished, MPs-only advisory panel on which the government gave itself a majority; the selection criteria were not publicly disclosed; there was no public engagement; the minister did not take questions from the ad hoc parliamentary committee about his choice; and Quebec was ultimately left underrepresented on the Court for nearly a year.
Worse still, the processes that led to the appointment of Justice Clément Gascon last spring, and Ms. Côté on Thursday, have been an utter regression to the kind of closed, unaccountable, unrepresentative and enigmatic approach that, 10 years ago, all parties agreed must change.
It is important to note that my criticism of the government’s process – or lack thereof – does not constitute criticism of the appointees themselves. But the Supreme Court is regrettably diminished in the eyes of the public when its judges are selected in a way that appears downright clandestine.
If Canadians do not trust the appointments process – indeed, if they do not even know whether a process exists – their confidence in the court and its decisions may understandably erode. As the justice committee found in 2004, “more credibility in the appointments process would be beneficial to the Supreme Court and lend it more legitimacy in the eyes of Canadians.”
We entrust our Supreme Court with upholding the rule of law and civil liberties, protecting our rights under the Charter and arbitrating federal and provincial areas of jurisdiction. An open, inclusive, accountable appointment process evinces respect for Parliament, the judiciary, the provinces and the Canadian public, while fostering confidence in the court. A secretive or non-existent process does the opposite.
Ten years ago, Mr. MacKay and his fellow Conservatives called for “a greater degree of transparency” in the making of Supreme Court appointments. It is regrettable that, as minister, he is not heeding his own good advice.
Irwin Cotler is the Liberal MP for Mount Royal, former minister of justice and attorney-general of Canada, and emeritus professor of law at McGill University.