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Non-political SCC appointment process a welcome improvement

The government’s new non-partisan process for appointing justices to the Supreme Court of Canada (SCC) is a positive change, but recommendations should remain confidential and the final word should always belong to the prime minister, Toronto lawyer and arbitrator Earl Cherniak tells AdvocateDaily.com.

In announcing the new process, the government emphasized the importance of transparency, inclusivity and accountability to Canadians in the SCC judicial appointment process.

Under the new procedure, an independent, non-partisan advisory board will be responsible for identifying suitable candidates who are qualified, functionally bilingual and representative of Canada’s diversity.

The advisory board, chaired by former prime minister Kim Campbell, will include a retired judge, nominated by the Canadian Judicial Council; two lawyers, one nominated by the Canadian Bar Association and the other by the Federation of Law Societies of Canada, and a legal scholar nominated by the Council of Canadian Law Deans. Three other members, including two non-lawyers, will be nominated by the minister of justice.

For the first time, any qualified Canadian lawyer or judge may apply for appointment to the SCC through the Office of the Commissioner for Federal Judicial Affairs. The advisory board will consider applications received through the Office, although it will also actively seek out qualified candidates and encourage them to apply.

After consulting with the Chief Justice of the Supreme Court and other key stakeholders, the board will provide the prime minister with a non-binding shortlist of three to five individuals for consideration.

The eventual nominee will take part in a moderated question-and-answer session with members of several House of Commons standing committees.

As Cherniak, partner with Lerners LLP, explains, this process does seem to be more open than the current practice in which there is no real transparency.

“An independent, non-political process for identifying qualified jurists is welcome and an improvement. But the ultimate decision must remain with the prime minister, who need not be bound by the recommendations. And the list of recommendations should not be made public. Historically, and with only few exceptions, the appointments by prime ministers have been good ones, and not politically motivated. Canada has been well served,” says Cherniak.

At the same time, he adds: “An appointment by a Justin Trudeau (or a Jean Chretien) is likely to be a different one than by a Stephen Harper (or a Brian Mulroney). That is because what they consider to be sufficient and suitable qualifications will differ.”

Cherniak does take issue with the notion that any Canadian lawyer or judge can now put his or her name forward for appointment to the SCC. 

“In my view, no self-respecting qualified jurist would put his or her name forward. For such a person, there would be no lack of representations to the advisory board. Self-nomination would be a disqualification,” he explains.

Ultimately, Cherniak says there will likely be controversy related to this new process, as “there always is. For instance, the elimination of the convention that there always be judges from the various regions of Canada is problematic. Atlantic Canada is certain to be more than miffed if Justice Thomas Cromwell’s replacement is not from the Maritimes. And the bilingual requirement will eliminate from the pool many highly qualified jurists, especially from the eastern and western provinces, notwithstanding that, historically, many of the best judges on the court came there as unilingual Anglophones.   

“The proposal that the nominee be subject to a public Q and A by members of parliament is an attempt to address perceived lack of transparency, and has the advantage of ensuring that the prime minister will nominate a person with the requisite qualifications. No such qualified nominee will discuss his or her views on matters likely to come before the court, and the proposal avoids the ‘advise and consent’ and the ‘up or down’ circuses of the U.S. system,” says Cherniak.

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