Selecting the supremes: the appointment of judges to the Supreme Court of Canada.

• Author: McCormick, Peter

1. INTRODUCTION

   The classic problem in political theory and institutional design is the simple question, "Who shall guard the guardians?" Especially when judicial power is an increasingly visible dimension of legitimate political authority, a challenge of comparable significance is, "Who shall appoint the judges?"--particularly the judges of the nation's highest court. For much of the country's history, Canadians have shown a surprising indifference to this question, despite the fact that our southern neighbours from their beginning established a check-and-balance mechanism for this important function. The fact that the use of that mechanism has been sporadically controversial has somehow always seemed to suggest only that the Americans had gotten the answer wrong, not that Canadians had somehow missed the question.

   But a new Canadian prime minister may have nudged the country beyond its indifference. Shortly after taking office in December 2003, Liberal Prime Minister Paul Martin spoke of the need to address a "democratic deficit," with the appointment of Supreme Court judges as one element of this larger problem. He promised to make the process more transparent and more accountable, and charged the House of Commons Justice Committee with conducting public hearings in order to come up with a set of recommendations or alternatives. The context of these comments was an anticipated retirement in 2006, but they became more pressing in the spring of 2004 when two Supreme Court justices unexpectedly announced their retirement. As if to demonstrate precisely what was at stake, the Supreme Court ended the term with several five-to-four decisions, including the clearest statement to date of the meaning of "freedom of religion" under the Canadian Charter of Rights and Freedoms. (1) The reduction of the Liberals to a weak minority position in the June election highlighted the anomaly of an unfettered Prime Ministerial discretion in making appointments; but when two new Supreme Court appointments were announced in August 2004, the "new" process involved only the most minimal of concessions.

   With that recent history as background, this paper will begin by identifying five important but easily overlooked differences between the American and Canadian judicial systems. From that point, it will describe the Supreme Court of Canada and its place in the Canadian judicial system, explain the appointed process for the Court and the way this process has changed in recent decades, identify the major challenges in devising a functional appointment process, and describe and discuss some of the proposals that have been made for change.

2. THE CANADIAN AND AMERICAN COURT STRUCTURES BRIEFLY COMPARED

   At first glance, the Canadian and American judicial systems--and specifically the place of the respective Supreme Courts within them--could scarcely be more similar. Viewed in a global context, this initial impression is fully justified. Both high courts operate within a federal system based upon the English common law, assuming generalist judges with explicit and effective guarantees of judicial independence; multi-judge panel appeal courts immediately below the highest court; and solo-judge trials (sometimes with juries) in the courts of first resort. These characteristics sharply differentiate them from the world's most common and most widely imitated judicial system, the continental European model.

   At the same time, however, the similarities do not run as deep as might at first be assumed, and several discontinuities are important:

   First: The United States Supreme Court is fully entrenched within the American Constitution; although Congress may make some constrained unilateral interventions regarding its jurisdiction and procedure, the basic elements of the Supreme Court and its practices are protected not only by a strong public opinion but also by a formal document that can only be altered through difficult formal procedures. (2) The Supreme Court of Canada, by contrast, appears only in the form of a permissive clause in the Constitution Act 1867, (3) and was created (and continues to be sustained) by a simple Act of Parliament, several times amended, which defines the institution, its composition, its jurisdiction, and its practices. (4) Although the subsequent Constitution Act 1982 (5) purports to put some features of the SCC beyond simple parliamentary control (such as the "composition" of the Court), this is done in such a clumsy fashion that many constitutional experts believe these clauses to be of no effect at all, leaving the Court as an artefact of the legislative will of the national Parliament. (6)

   Second: Both the USSC and the SCC stand simultaneously at the top of a structure of purely national courts and the parallel pyramids of state and provincial courts; each is the highest court of appeal and the source of binding authority for both sets of courts. But in the United States, the overlap is not complete and there is an important category of law--questions of the meaning or the validity of purely state law--that cannot be referred to the USSC. In Canada, the Constitution Act 1867 provides for the establishment by Parliament of a "General Court of Appeal" and there is no question of law that could not at least theoretically rise to consideration on the merits by the Court.

   Third: The American system of federal courts is extremely extensive, comparable in terms of both the number of judges (trial and appellate) and the size of its docket to the judicial system of the largest of the states; but in Canada the federal courts are much more modest in scope and jurisdiction, comparable at most to one of the smaller provinces. (The numbers for Nova Scotia provide the best fit.) This is reflected in the caseload of the respective Supreme Courts: In recent years, eighty-five percent of the docket of the USSC has been devoted to appeals from the federal courts, and fifteen percent to appeals from state courts; over the same period, the docket of the SCC is a perfect mirror image, with eighty-five percent of the cases coming from provincial courts and only fifteen percent from the federal courts. It is also reflected in the personnel who staff the respective courts: At present, and not atypically, seven of the justices of the USSC have been elevated from federal courts and one from a state court, while one came to the USSC without prior judicial experience; but as a regular practice over several decades, seven of the judges of the SCC have been elevated from provincial courts of appeal, one from the federal court, and one lacks prior judicial experience.

   Fourth: In the United States, judges of the federal courts of appeals and justices of the Supreme Court are appointed in similar ways, but the staffing of state courts is completely separate (and varies significantly from one state to another (8)); in Canada, the staffing of the provincial superior courts (i.e., all but the very lowest level of trial court), of the federal courts, and of the Supreme Court itself is handled by the same set of authorities on similar principles and criteria. There is therefore a recurrent potential for friction between the higher state courts and the USSC that has no counterpart in Canadian practice.

   Fifth: It is widely accepted in American practice that partisan differences have deeply penetrated the judiciary, less in the sense of any patronage than in the form of ideological differences that are both intentional and persistent. Judges appointed by (or elected as) Democrats behave differently and support different legal values and priorities than judges appointed by (or elected as) Republicans, not to such an extent that these different judges cannot engage in a professional discourse and work from a considerable set of shared values and procedures, but certainly to such an extent that any study of judicial behavior will routinely include the partisan variable. In Canada, the situation is rather different. Studies of judicial behavior do not generally include the partisan variable and when they do, it yields nothing of value; but, more importantly, it is not generally accepted that the appointment process is or should be driven by considerations of this sort.

   This leaves us with something of a paradox: The Canadian and American judicial systems in general, and their Supreme Courts in particular, are arguably more similar to each other in more respects than either is to any other judicial system in the world; but at the same time, there are important structural differences between them that make casual generalization extremely dangerous.

3. A BRIEF HISTORY OF THE SUPREME COURT OF CANADA

   1. The Early Supreme Court

      The Supreme Court of Canada was not created by the 1867 British North America Act, (9) which is the closest thing to a founding document as one can find in Canada's gradualist evolution to full formal independence. There are several reasons for what now appears to be a curious omission. One may simply be that the notion of complete appellate hierarchies, topped by national high courts, is standard today but was considerably less so in the nineteenth century. A second is that Canada already had (and retained even after the creation of the Supreme Court) a "higher" court in the form of the Judicial Committee of the Privy Council, a court-like body whose membership partially overlapped the House of Lords, and which had ultimate judicial authority over the off-island parts of the British Empire. H And a third was the reluctance of a not inconsiderable number of Canadians--most critically, the French-Canadians of Quebec, for whom a Supreme Court would necessarily be dominated by their not-always-understanding English-Canadian compatriots--to accept the authority of a national high court, which made the distant Judicial Committee a more attractive and more plausibly neutral final authority. A highly unpopular Judicial Committee decision...