(As published in The Montreal Gazette)
Next month, Justice Louis LeBel will retire from the Supreme Court, creating a new vacancy to be filled by a judge from Quebec. Given the importance of this responsibility, and especially given the fiasco of last year’s Nadon/Gascon appointment, one would expect the government to go out of its way to ensure that this appointment process and its outcome will be beyond reproach. However, with time running out, the government — by its own admission — has not only yet to initiate the process, it has not even decided what the process will be.
This time last year, the prime minister named Federal Court Justice Marc Nadon as the court’s newest member, despite having been warned that he was legally ineligible to represent Quebec. Following a constitutional challenge, the court rejected the appointment and spent a full year short a Quebec judge. Justice Clément Gascon was ultimately named following the most occult process in years.
When I was justice minister, I oversaw the 2004 process that resulted in the appointments of justices Rosalie Abella and Louise Charron. It included, for the first time, a public protocol setting forth the people to be consulted, an inclusive advisory selection panel composed of MPs, distinguished representatives of the legal community and eminent public persons, who evaluated and recommended candidates. Moreover, the evaluation criteria were made public from the outset, and prior to the appointments being finalized, I took questions from a parliamentary committee about, among other things, how those criteria were met by the nominees.
These measures were intended to provide a more inclusive, transparent, public and accountable process. Indeed, the committee submitted a report with recommendations for further improvements, and that report was made public. I followed a similar process in 2005, which led to the appointment of Justice Marshall Rothstein to the Supreme Court in 2006.
Even with the change in government in 2006, I was hopeful that the process would continue to get better. There seemed to be all-party agreement that Canadians would be best-served by greater openness. Ten years since those initial changes, however, there has regrettably been a serious regression.
For example, the process that led to the failed appointment of Justice Marc Nadon featured a diminished, MPs-only advisory panel on which the government gave itself a majority. Moreover, the selection criteria for the Nadon appointment were not publicly disclosed, and the ad hoc committee that met following his nomination was not permitted to question the minister about his choice. Furthermore, it now appears that the government ignored warnings and advice from the Quebec bench and bar, the Quebec minister of justice and the chief justice of Canada.
Yet even this watered-down process was a model of transparency and rigour when compared with how the government chose Justice Gascon. I have the greatest respect for him — and for Justice Nadon, for that matter — but his appointment was made without any advisory panel, parliamentary involvement, public hearing or public participation of any kind. Indeed, the Gascon process was a throwback to the kind of closed, enigmatic approach that, 10 years ago, all parties agreed must change.
All of which leads to the question of how the government will make its next appointment when Justice LeBel retires at the end of November. Normally, a selection panel would have already been established, and consultations and evaluation of candidates would already be underway, so as to ensure a seamless transition.
However, Justice Minister Peter MacKay recently responded to my questions on the subject by saying that the appointment process is “under reconsideration,” and that it “remains to be determined” how the government will proceed. This despite the fact that it has been known for some time that Justice Lebel will be leaving the court upon reaching the mandatory retirement age of 75.
In our democratic system, with a constitution and a Charter of Rights and Freedoms, the Supreme Court is a pillar of our constitutional democracy and a guarantor of those rights. Appointing its judges is thus one of our government’s most important responsibilities, and it is likewise important that Canadians understand and trust the appointment process.
Since taking office, the current government has taken significant steps backward in this regard. With barely six weeks until the next vacancy, it has an opportunity to change course, but it is running out of time.
Irwin Cotler is the MP for Mount Royal, former justice minister of Canada, and emeritus professor of law at McGill University.