The appointment of Marshall Rothstein to the Supreme Court of Canada in March 2006 made Canadian history. Rothstein was the first - and to date the only - nominee required to face questions in a public hearing from a committee of the House of Commons established for the purpose. Prime Minister Stephen Harper emphasized the importance of the innovation: “The way in which Justice Rothstein was appointed marks an historic change in how we appoint judges in this country. It brought unprecedented openness and accountability to the process. "The hearings allowed Canadians to get to know Justice Rothstein through their members of Parliament in a way that was not previously possible." It was certainly a change. When Rosalie Abella and Louise Charron were appointed to the nine-member court in 2004, the committee had to make do with questioning then Justice Minister Irwin Cotler rather than the nominees. Before that date, the government simply made an appointment directly, without evident consultation.
Following on the Rothstein innovation, in May 2008 Justice Minister Rob Nicholson announced the process to be used to replace out-going Supreme Court judge Michel Bastarache. This time a committee of the House of Commons would review prospective candidates for the job and hand the government a short list of three, unranked, from which presumably the government would make its choice. Then the nominee would face questions from an ad hoc Commons committee in a public hearing. In the end, the scheme fell apart, and in September the prime minister announced the nomination of Nova Scotia judge Thomas Cromwell for the position. He said that Cromwell would still face questions from a Commons committee á la Rothstein. Even that collapsed. In December the prime minister simply appointed him to the court.
If nothing else, these events demonstrate an unsettled attitude towards the process used to select judges to the Supreme Court. On the one hand, some observers – although by no means all - evidently regard the traditional process under the constitution of straightforward prime ministerial nomination, in itself a guarantee of appointment, to be lacking in transparency. On the other, there is debate about what should be done instead. Since the Supreme Court is the final arbiter of the constitution, and therefore of Canadian federalism, the matter is relevant to students of federalism as well as the judiciary. Indeed, the court’s credentials as the arbiter of federalism provoked criticism of the appointment process from the start.
The criticism was straightforward. How could the court, it was argued, be regarded as an independent and objective arbiter of conflicts between the federal government and the provinces over their respective roles under the constitution when the members of the court were appointed by one side? Suspicion was rife in some quarters that the very purpose of the court was to ensure that the provinces remained subordinate to the federal government within the federation. The Quebec government was particularly sensitive about the point, and over the years made a number of recommendations to involve the provinces in the selection process, to no avail. When Parliament abolished appeals from Canadian courts to the Judicial Committee of the Privy Council in 1949, thereby establishing the Supreme Court as the country’s final appellate court, the event sparked a fresh round of consternation on the part of some of the provinces that the court would necessarily take an overly centralized view of federal matters.
Today, critics of the Court continue to suggest that the appointment process raises doubts about the legitimacy of the institution as the arbiter of federal disputes. They have also developed a criticism of the process that is focused on the office of the prime minister, the idea being that it gives the office a monopoly over judicial appointments that is out of keeping with democracy in the 21st century. In addition, critics now raise other issues in connection with the court, such as the term of appointments. Under the constitution the term is appointment until age 75, and the suggestion has been made that this is too long.
Given the ongoing criticisms of institutional features of the Supreme Court, the inability or unwillingness of the federal government to decide how to reform the existing process used to select its members, and the lack of consensus generally on the matter, the Institute of Intergovernmental Relations, Queen’s University has decided to sponsor a series of papers on these and related issues in an effort to move along the debate. Accepted papers will be posted on the Institute’s website.
The papers should focus on the institutional features of the court as they relate to federalism as well as on the relationship between the court and other institutions of government. Listed below are some topics that interested contributors might like to consider writing about:
The papers are expected to be relatively short, or approximately 2000 words, although lengthier ones certainly are welcome.
Jennifer Smith, Political Science, Dalhousie University (firstname.lastname@example.org), and Nadia Verrelli, post-doctoral fellow, IIGR (email@example.com), are the general editors of the series. They invite those interested in submitting a paper for possible inclusion on the website to send either one of them an abstract of the proposed paper.
Federal Dimensions of Reform of the Supreme Court of Canada is the second instalment in the Democratic Dilemma series. The first focussed on Senate Reform. Papers from this exercise have now been published in The Democratic Dilemma: Reforming the Canadian Senate (2009. Ed. Jennifer Smith. Kingston: McGill-Queen’s University Press).