An Unknown but Not a Secret Process: Appointment of Supreme Court Justices

By Cotler, Irwin | Canadian Parliamentary Review, Summer 2004 | Go to article overview

An Unknown but Not a Secret Process: Appointment of Supreme Court Justices


Cotler, Irwin, Canadian Parliamentary Review


On February 4, 2004 the federal government reaffirmed its commitment originally made on December 12, 2003 to "specifically consult the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, on how best to implement prior review of appointments of Supreme Court of Canada judges." In March and April 2004, the Committee heard many witnesses on this issue. The Minister of Justice outlined the present method of appointing Justices of the Supreme Court in an appearance before the Committee on March 30, 2004.

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I begin by recalling and Reaffirming two themes your deliberations. First, the review of the appointments process is a task of great importance to our country. For the Supreme Court--as the highest appellate court and final arbiter for the resolution of legal disputes--is not only at the pinnacle of our court system, but our court system is a fundamental pillar of our constitutional democracy.

In other words, our Constitution frames both the distribution of governmental power between the federal government and the provinces--otherwise known as legal federalism "or the powers process"--as well as the limits on the exercise of governmental power--whether federal or provincial--otherwise known as human rights, or the "rights process."

The Supreme Court has the constitutional responsibility of holding governments to account when they trespass these limits either by way of a jurisdictional trespass in the matter of federal-provincial relations, or by way of a rights violation under the Charter. It is a responsibility, it should be noted, that Parliament has vested in the Supreme Court; and it is a responsibility that the Supreme Court has discharged with diligence, sensitivity, and fairness.

A second theme that has characterized your deliberations is that of the Supreme Court of Canada as the exemplar of excellence, whose juridical legacy has resonated beyond Canada.

For it is not only Canadians that are proud of our Supreme Court. The Court is respected throughout the country, indeed around the world, as a model of what a vital, modern and independent judicial institution should be. As the representative from the Quebec Bar told you, the quality of Supreme Court judges is, in his words, "impeccable". (1) Professor Weinrib noted in her presentation that Supreme Court decisions are constantly cited by courts in countries as diverse as Israel and South Africa. (2) The Prime Minister himself recently said that we have "excellent Supreme Court judges who are recognized the world over

I turn now to an appreciation of the present appointments process organized around two principles: first, the constitutional framework governing these appointments and second, the comprehensive consultative process which has developed to give expression to--or implement--this constitutional responsibility.

I begin with the constitutional framework. At present, it should be noted, the Supreme Court Act vests the constitutional authority for the appointment of Supreme Court judges with the executive branch of government by way of Order in Council appointment, and the executive remains responsible and accountable for the exercise of this important power. The threshold consideration in this appointments process is to get the best possible candidates and the best possible Court.

Accordingly, to implement this constitutional responsibility, and secure the best candidates, a comprehensive consulting process has been developed. Regrettably, this process is not that well known--indeed, it may be said to be relatively unknown--and this has led some to believe that the process is both secret and partisan.

What I would like to do now, in the interests of both transparency and accountability is to describe the consultative process, or protocol of consultation, that is being used to select members of the Supreme Court. I cannot claim that this consultative process or protocol has always been followed in every particular. …

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An Unknown but Not a Secret Process: Appointment of Supreme Court Justices
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