National Post

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Monday, May 03, 1999

PM shows little interest in new Supreme Court process
Grits like current rules : Calls grow to give Canadians a say in choosing judges

Janice Tibbets
Southam News


Misa Savic, The Associated Press / Justice Louise Arbour, seen as a leading candidate for appointment.

OTTAWA - With a new judge to be appointed to the Supreme Court of Canada within months, the federal Liberals are facing mounting pressure to change the way Jean Chretien hand-picks the nine-member bench.

But the prime minister and Anne McLellan, the Justice Minister, refuse to acknowledge a call to at least review the 130-year-old selection process to perhaps give Canadians more say in shaping a court that wields tremendous influence.

"I think the way we appoint Supreme Court judges in this country has served this country very well. I am very satisfied," says Ms. McLellan, echoing her boss' long-held contention that Canada has one of the most respected high courts in the world.

The Liberals' strong support for the current ground rules means they are effectively shutting down a longtime debate that has been rejuvenated among provincial justice ministers, academics, and the legal establishment following Justice Peter Cory's announcement that he will retire June 1, vacating one of three Ontario seats on the Supreme Court.

The public has also expressed concern, with only 8% of more than 1,000 Canadians in a recent survey supporting the current practice.

As it stands, Mr. Chretien will make a telephone call, likely before the end of summer, offering a coveted Supreme Court posting to a judge or lawyer from Canada's largest province.

Justice Louise Arbour, chief prosecutor for the United Nations war crimes tribunal who is on leave from the Ontario Court of Appeal, heads the list of possible candidates being discussed in legal circles. Other potential replacements also come from the Ontario Court of Appeal, including justices Rosalie Abella, Louise Charron, John Laskin, Michael Moldaver, and David Doherty.

The decision, however, will be the prime minister's alone, after receiving a shortlist of candidates from Ms. McLellan, who informally consults with the Chief Justice, Antonio Lamer, and the legal community, including provincial justice ministers, the Canadian Bar Association, provincial law societies, and provincial chief justices.

There has been growing criticism that because of the closed-door process there is not enough public input, and chances are Canadians never even know about a nominee's existence until their appointment is a fait accompli.

"I think there is room for rethinking some of this stuff" said David Taras, a University of Calgary political scientist.

Proposed changes, which have been published in legal publications in recent months, vary widely, ranging from a call for American-style confirmation hearings, to more modest proposals such as giving Parliament or the provinces some role in the decision.

Alberta Justice Minister Jon Havelock, after he and a handful of other justice ministers failed in a pitch last fall for a federal review, recently wrote Ms. McLellan appealing for her to consider copying Alberta's new initiative of allowing a community panel to select provincial judges.

"The day-to-day lives of the provinces are impacted by the Supreme Court, and it is such an important appointment that I feel it has to be more transparent and involve the general public and the provinces," said Mr. Havelock.

The selection procedure has long been an irritant for provinces that favour Ottawa passing more powers to the provincial governments.

The failed Meech Lake and Charlottetown accords would have required the federal government to chose from a list submitted by the province or provinces affected by a vacancy.

Under federal law, there currently must be three Supreme Court appointees from Quebec. By tradition, there are also three from Ontario, two from the West and one from Atlantic Canada.

Ms. McLellan defended the current informal consultation process by saying she talked to hundreds of people in the legal community before Ian Binnie was picked from a Bay Street law practice last year following the sudden death of John Sopinka. The appointment, however, came as a shock to legal watchers who were expecting both a woman and a candidate from the Ontario Court of Appeal.

Peter McCormick, a University of Lethbridge political scientist who has studied the Supreme Court for decades, agrees that the current process has spawned a strong bench. But he says that's not the point.

"The point is we're relying on prime ministerial discretion and good taste and judgment, and no review at all," he said. "We're lucky it's worked as well as it has but you don't want to be lucky in stuff like this. There's got to be a better way."

The Reform party advocates a Canadian version of U.S. confirmation hearings, in which judges would be approved by a Parliamentary committee.

In the U.S., such hearings often become partisan and high-profile, such as the investigation into sexual harassment allegations against Justice Clarence Thomas.

Mr. Chretien has dismissed that prospect outright, arguing that the best candidates wouldn't come forward if they were subjected to intense grilling.

Several judges on the Supreme Court also have little enthusiasm for wide-open scrutiny of nominees, but some judges still suggest, nonetheless, that they're open to at least reviewing the current process.

"It's something that should be considered with care and there's a clear understanding of what's wanted and what's desired from this type of a decision," said Justice Cory in an interview.

"I'm certainly not adverse to a study with regard to it, but for goodness sake let there be clarity on what really is wanted."

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