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Legitimacy on Trial: A Process for Appointing Judges to the Supreme Court of Canada

Public Policy Paper by Ian Peach

The process of appointing Justices to the Supreme Court of Canada has been a subject of considerably controversy on account of the Prime Minister’s unfettered appointment powers. Although it has generally been accepted that the people appointed as Supreme Court Justices have been individuals of high calibre for decades, the highly informal appointment system is not regarded appropriate for a mature and liberal democratic federation like Canada that has a constitutionally entrenched Charter of Rights. The ideas for alternative appointment processes are themselves often subject to criticism for their potential to politicize the appointment process and cause the best candidates to exclude themselves from consideration. This paper traces the debate over Supreme Court of Canada appointments over the last two decades and emphasizes the need to be conscious of the conflicting interests that have informed the debate over the years.

The reasons that have fed the debate over the appointment of Supreme Court Justices have drifted over time from federalism i.e. the provinces’ role in the appointments, to “judicial activism” in interpreting the Charter, and the appropriate balance between the courts and the legislatures in making politically charged decisions for society. It has been realized that merely providing the provinces with a role in Supreme Court of Canada appointments would not, by itself, be adequate to ensure the appointment of neutral and competent individuals; the appointment process itself needs to be defined and criteria set to assist the government in exercising its role in these appointments. A comparison of the Canadian process of appointment of Justices with those uses in the USA and Europe indicates the variety of options available to Canada in reforming its process. At the same time, it highlights the need for the appointment process to be sensitive to the Canadian context and political culture. In view of the United Kingdom’s increasing assumption of a federal character, Canada could pay more attention to the judicial reforms being debated in the UK.

Rather than a Parliamentary hearing of the nominee, the author proposes that a panel review a “short list” of candidates in advance of their appointment. A key factor in the process of appointment of Supreme Court Justices is the constitution of the panel that would assess the candidates nominated by the provinces. An ideal assessment body would be the one that represents a wide variety of interest in society. While the significance of the criteria for assessing the candidates can hardly be overemphasized, there seems to be a broad consensus in Canada on the criteria adopted by the government. The author is of the view that requiring the Minister of Justice to explain the criteria used in appointments before a parliamentary committee could provide immediate and direct accountability of the executive branch of the government to Parliament for its appointments. The best approach to appointing the Justices would achieve the objectives of appointing to the Court individuals of exceptional ability and high professional reputation, enhancing the legitimacy of the Court as an independent, apolitical protector of our constitutional arrangements, and building a court that reflects the diversity of our country.

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Policy Publication Details

Author(s): Ian Peach;
Publisher: Saskatchewan Institute of Public Policy [ Visit Website ]
Year Published: 2005; Publisher Type: Research Institute
Publicly Available: Yes Research Focus: National;
Registration Required: No Language: English
Payment Required: No Publication Format: Adobe PDF

Subjects / Categories:

Policy Articles / Crime & Justice / The Courts
Policy Articles / Crime & Justice / The Courts / 2005
Policy Articles / Crime & Justice

Keywords / Tags:

Supreme Court Canada; appointment process; international comparison; judicial review; judicial independence; Australia; United Kingdom; Germany; United States;