Last week, Prime Minister Justin Trudeau made his first pick to the Supreme Court of Canada, Justice Malcolm Rowe of the Newfoundland and Labrador Court of Appeal.
This week, for the first time, parliamentarians will have not one but two public hearings to debate the nomination, and at the second hearing they will hear from Justice Rowe himself. His moment in the spotlight marks the return of a practice that was initiated – and then terminated in controversy – by former prime minister Stephen Harper.
Is this the politicization of the country’s highest court, or a little light shed on an important part of our national life? Here’s what Canadians should know about how the process will unfold.
Two hearings are better than one
The first hearing, on Monday, is for the government to explain its pick and the process. The second, on Tuesday, is for the judge to explain himself.
The nine members of the Supreme Court wield enormous power in the post-1982 Charter of Rights and Freedoms era. As Justice Rowe said on his application form, the judges’ role is to make law, not just to apply it.
Last year, they created a right to an assisted death in some circumstances. Also last year, they said the Constitution protects the right to join a union and to strike. Over the years, they have struck down a federal abortion law, told Alberta that its human-rights code can’t leave out homosexuals and ensured that federal prisoners have a right to vote in elections.
Once in, for better or worse, the country is stuck with the judges; they can stay until they are 75.
The hearings bring some transparency so that Canadians can hold Mr. Trudeau accountable for his choices.
Trudeau v. Harper: What has changed
In 2006, Stephen Harper became the first to put a nominee, Marshall Rothstein of Manitoba, in the hot seat in a televised parliamentary hearing. “The genie is out of the bottle,” Mr. Rothstein said afterward.
But after hearings in 2011 for Michael Moldaver and Andromache Karakatsanis of Ontario, in 2012 for Richard Wagner of Quebec and in 2013 for Marc Nadon, also of Quebec, Mr. Harper put the genie back in the bottle. This followed the Supreme Court’s rejection of Justice Nadon, on the grounds that he wasn’t legally qualified, and The Globe and Mail’s publication of Mr. Harper’s secret short and medium lists of candidates, which showed that the majority were similarly unqualified.
Mr. Harper put his final three appointees on the court with no hearings, and only brief, boilerplate explanations as to why he chose them.
Under Mr. Trudeau’s new process, parliamentarians have eight days to prepare for the hearing with the judge. Mr. Harper offered up the nominee’s name just two days before the public hearing. In the United States, the Senate judiciary committee usually has a lead time of five to six weeks.
Justice Rowe’s hearing will be at the University of Ottawa, a symbolic way of introducing him to Canadians outside the intimidating environment of a government committee room.
There’s another difference that does not meet the naked eye. Under Mr. Harper, a handful of MPs from the three main parties were involved in the selection process (until the Nadon selection), and then took part in the public hearings. Since they already had a stake in the result, all parties tended to be quite deferential. This time, an external committee led by former Progressive Conservative prime minister Kim Campbell replaced the MPs in the selection process.
Compared with our American neighbours
There has been no evidence that Mr. Trudeau’s new process politicizes the appointments as it does in the United States. (In the U.S., the hearings may be more a symptom than a cause of a politicized process.)
The Canadian hearings are conducted respectfully – critics have said too respectfully. At each hearing, a leading lawyer, retired judge (or, in this week’s case, a law professor) acts as moderator, telling parliamentarians what they may and may not ask.
Members of the Canadian legal community have said in the past that they fear politicization and, conversely, that the sessions are too tepid to be useful. But the hearings held thus far have had occasional sparks – NDPer Joe Comartin going at Justice Moldaver on his promise to learn French – and, on a quieter note, revealed personal histories and broad overviews of judicial philosophy.
Furthermore, our version of the “Senate judiciary committee” can’t reject the judge. It’s the House of Commons justice committee, along with the Senate legal affairs committee and representatives of the Bloc Québécois and the Green Party, that will meet Justice Rowe, and neither they nor the Commons as a whole will be voting on his suitability.
In the Canadian tradition, it’s still the prerogative of the prime minister and cabinet – the executive – to choose Supreme Court judges. The idea is that the transparency of the hearings will deter a PM tempted to put purely political considerations ahead of merit.
A hearing for all 840 full-time federally appointed judges?
Supreme Court Justice Russell Brown suggested as much in a blog when he was a law professor at the University of Alberta, calling the federal appointment process a “disgrace” in its lack of parliamentary oversight. Justice Wagner also suggested such hearings, during his own nomination hearing. But don’t hold your breath.
SEAN FINE – JUSTICE WRITER
The Globe and Mail
Published Sunday, Oct. 23, 2016 7:44PM EDT
Last updated Sunday, Oct. 23, 2016 7:44PM EDT