National Post

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Thursday, November 04, 1999

Results of selection process 'excellent,' despite inherent risks
Prime Minister's choice
Chris Wattie
National Post

The process by which the nine justices of the Supreme Court of Canada are picked is simple: It is up to the prime minister.

But at least one legal expert says that, so far, the system seems to have worked just fine.

The chief justice and eight puisne -- or junior -- justices are currently appointed by the federal cabinet, on the recommendation of the justice minister. In practice, the choice is that of the prime minister.

"Basically, the prime minister makes the appointment," said Ed Ratushny, a professor at the University of Ottawa's Faculty of Law. "It says it's a cabinet decision, but it would be difficult for anyone in cabinet to oppose the prime minister on [an appointment]."

Members may be selected from among the judges on the provincial superior courts, or from among lawyers who have belonged to a provincial bar for at least 10 years. Almost all of the justices appointed in recent years have been drawn from provincial or federal courts.

While there have been suggestions that appointees be subjected to confirmation hearings, as are nominees to the Supreme Court of the United States, or be picked from among names submitted by committees of lawyers, judges or members of the public, Prof. Ratushny says he's not convinced the system needs reforming.

"All of the individuals named to the court have been outstanding," he said in a telephone interview from Ottawa. "It sounds like a bad system, because it's a purely political decision ... but the results have been excellent."

Confirmation hearings would politicize the court, says Prof. Ratushny, and nominating committees would create other problems. "If the committee is made up of members of the bar, then bar politics would be brought into [the process]," he said. "If members of the public are brought in, then you have to question their knowledge and qualifications.

"If we're going to change [the appointment system], I would need to see some convincing evidence that it's an improvement over the current system, which seems to be working quite well."

There are some limitations on the prime minister's choices in appointing a new justice to the Supreme Court. At least three of the judges must be appointed from Quebec, under the Supreme Court Act, the legislation that governs the court. Traditionally, three of the other judges are drawn from Ontario, one from the Atlantic provinces and two from the West.

And because almost all have been lower-court judges, their qualifications have already been considered by bar association committees in the provinces.

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