Criminal Law

Accord acknowledges Supreme Court independence: Hicks

By AdvocateDaily.com Staff

An accord between Canada’s chief justice and its justice minister aimed at strengthening the independence of the Supreme Court is not legally binding but carries strong moral suasion, says Toronto criminal lawyer Christopher Hicks.

“It’s not intended to create rights or obligations which are legally enforceable,” says Hicks, founding partner of Hicks Adams LLP. “But they’re at least acknowledging the right principles.”

In July, Supreme Court Chief Justice Richard Wagner and Justice Minister David Lametti signed the accord to recognize and reinforce the independence of the court, according to a joint news release.

The accord also affirms “the principle of ministerial accountability for the expenditure of public funds.”

Each side recognizes that the other has a vital role to play in the administration of justice and that they should maintain a productive and collaborative relationship, Hicks notes.

The deal establishes protocols for the court’s funding requests. “This is the core of judicial independence,” he tells AdvocateDaily.com.

The accord stipulates that proposed budgets and other draft funding requests made by the Supreme Court’s top administrative officer — the registrar — may be submitted to the justice minister for comment before they’re finalized. Once completed, however, the justice minister submits the requests to the finance minister without alteration.

The accord seems to elevate the stature of the registrar and deputy registrar, Hicks says.

“They are the ones that are dealing with the upper reaches of the civil bureaucracy — the treasury, the Department of Justice and cabinet — to ensure the independence of the Supreme Court in terms of funding and resources,” he says.

The registrar may consult with the justice minister on the merits of the court’s funding proposal, but doesn’t have to make the changes that the minister recommends, Hicks says.

“It seems that he or she can just say, ‘No, we don’t agree. We’re going right to the minister of finance and the Treasury Board with our request,’” he says. “That’s important in order to put some space between the Supreme Court of Canada and the justice minister.”

The accord makes clear that the justice minister won’t recommend hiring any registrar who is not approved by the chief justice. Similarly, if the chief justice wants a registrar dismissed, the justice minister “carefully considers” his or her views, according to the accord.

When push comes to shove, the accord has no real teeth but shows the parties’ intentions, Hicks says.

“It’s a statement of principle, and I think there is tremendous moral suasion to it. They can always go to the public and say, ‘Hey, look at this,’ if something goes wrong,” he says.

However, the Supreme Court can never be truly independent until the appointment of its judges is more transparent, Hicks says.

The same goes for all judicial appointments controlled by Ottawa, such as for Federal and Superior Courts, he says. “It’s completely opaque.”

On the other hand, Ontario’s process, overseen by a Judicial Appointments Advisory Committee, is much more transparent, Hicks says.

In Ontario, every opening on the provincial bench is advertised, and any lawyer can apply, he says.

The advisory committee studies applicants’ references and calls them in for an interview. Top candidates are placed on a shortlist that is submitted to the province’s attorney general for final selection, Hicks says.

“There’s nothing like that for the federal government, and that includes the Supreme Court of Canada. And that’s part of the aspect of independence — knowing how these people were selected,” he says.

“They can’t be truly independent until the process is transparent. It has to be reformed.”

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