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.
II. 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. …