Supreme Court Appointment Mess Should Have Been Avoided

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By Hon. Irwin Cotler *

Newly appointed Supreme Court Justice Marc Nadon has stepped aside pending a legal challenge to his eligibility to assume one of the high court's Quebec seats. The situation raises serious questions about the process used to name judges to our nation's highest appellate body, with the Barreau du Québec worrying that the current state of affairs "adversely affects the rights and principles for a sound administration of justice."

The regrettable truth of the matter is that this "spectacular mess" - as one journalist put it - was entirely avoidable. Nadon's appointment from the Federal Court of Appeal breaks a 35-year tradition of Quebec judges being elevated from Quebec's Court of Appeal.

Immediate questions arise: Are we to conclude that no judge from the province's highest appellate body is worthy of the high court and/or that Nadon's judicial excellence surpassed them all? Moreover, the government last appointed a Quebec judge to the Supreme Court just last year - did Nadon's name and the related legal matter of eligibility not arise then such that the minister might seek to amend the Supreme Court Act, the statute at issue?

Justice Nadon will sit on the sidelines as the court hears many important matters, including the Senate reference, which speaks directly to questions of Quebec's representation in Ottawa. In that regard, the Barreau has called on the prime minister to submit the matter directly to the high court for immediate resolution.

Ultimately, this question could have been submitted as a reference to the court prior to the appointment such that no challenge would be necessary. Moreover, legislation could have been introduced to clarify the issue.

In August, Justice Minister Peter MacKay raised the concern over "provisions right now that could be interpreted as excluding federal judges from Supreme Court appointments." Even if this matter were only on the radar in August - and thus Parliament could not be asked to pronounce, in part owing to prorogation - why were MPs only informed of the selection of Justice Nadon a mere week before the court's term was to begin in October?

In that regard, Parliament was not given much time to review Justice Nadon's appointment at all. Barely 48 hours had passed between the prime minister's announcement and the convening of the ad hoc parliamentary committee to pose questions. Given that Justice Morris Fish announced his retirement last April, it is hard to justify a last-minute, rushed parliamentary review process when the vacancy was entirely foreseeable (owing to Fish reaching the mandatory retirement age of 75), with a six-month time frame before the start of the fall term.

The need to reform the appointments process has been on the radar for years. Indeed, in 2004, a Conservative Party dissenting report - endorsed by MacKay - called for "parliamentary ratification of the chosen nominee" and stated bluntly, "amendments to legislation must be made so that the appointment process becomes mandated."

I have outlined elsewhere what I believe the process should entail - and began to implement this as minister of justice in 2004 - including that the minister should publicly announce the protocol for consultation, and include the criteria for assessment and evaluation of a candidate, and the consideration of proposed candidates by a broad-based and representative panel.

As well, the minister should seek diversity on the bench. While it has been noted that now only three of the nine justices on the court are women, it has not gained that much attention that five out of six of the Harper-appointed justices are male. Surely this trend could be avoided by an express consideration of ensuring a representative bench.

Other reforms might include ensuring bilingualism and some experience with bijuralism - arguably a goal of the Supreme Court Act's provision of Quebec seats, and reflecting as well the need for adequate Quebec representation on the court.

In sum, while the process is in need of reform - which I hope occurs before the next scheduled vacancy next year - the current situation of an under-represented Quebec on the Supreme Court of Canada is undesirable and must not be prolonged. And yet, it was entirely avoidable and foreseeable.

* Irwin Cotler is the Liberal member of Parliament for Mount Royal riding. He is a former minister of justice and attorney general of Canada.

JULY 2018

Vol. 12 - No. 12


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