Judicial Appointments in Canada - Changes To The Supreme Court of Canada Appointment Process

Changes To The Supreme Court of Canada Appointment Process

The appointment process has been the source of some controversy in recent years, as appointments occur with no input from parliament or opposition political parties. Critics have alleged that this process has allowed the Prime Minister to effectively "stack" the courts with ideologically like-minded individuals who will support the current government's stance. Conservative critics have argued this leads to the rise of partisan, activist judges instead of neutral ones. Conversely, supporters have justified the process of appointment on the grounds that quiet appointments made as a result of the Prime Minister's consultation with experts result in better choices than ones that would be made in a public process where opposition politicians were allowed to interrogate the nominees and politicize the process.

In response to the critics, Prime Minister Paul Martin changed the appointment process slightly in 2004. He indicated his intention to appoint a special parliamentary committee to screen the new nominees and report to parliament on their findings, though neither this committee nor the parliament has the power to block recommendations. Similarly, the committee would not have the ability to directly interview the nominee. However, when the names of Justices Abella and Charron were put forward, parliament was dissolved, and thus unable to form committees. The Prime Minister subsequently named an ad hoc committee of parliamentarians that would both consider the process to be used, and hear from the Minister of Justice concerning the particular nominees. In addition to the parliamentarians, the committee also had two members of the Canadian Judicial Council, sitting judges who participated in the closed door discussions on the process, and recused themselves for the consideration of the specific appointees. In 2004, when this process was practiced for the first time, committee members from the Conservative Party of Canada refused to sign their committee's final report, calling the entire process "insufficient."

In April 2005, the Liberal government announced another change to the selection process: the advisory committee (which includes many federal nominees) would see a list of seven names given to them by the Minister of Justice and would be required to cut the list to three. The Prime Minister would choose one name from the list of the three remaining candidates to put forward to the Governor General. The advisory committee includes a Member of Parliament from each recognized party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial Attorneys General, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. A new advisory committee will be formed each time a Supreme Court vacancy occurs.

In February 2006, Prime Minister Stephen Harper increased access to candidates, allowing an ad hoc committee of parliamentarians to interview the candidacy of Marshall Rothstein, prior to his appointment. The Prime Minister still has the final say on who becomes the candidate that is recommended to the Governor General for appointment to the court.