Academic journal article University of New Brunswick Law Journal

Choices and Controversy: Judicial Appointments in Canada

Academic journal article University of New Brunswick Law Journal

Choices and Controversy: Judicial Appointments in Canada

Article excerpt

PART I

What do judges do? As an empirical matter, judges settle disputes. They act as a check on both the executive and legislative branches. They vindicate human rights and civil liberties. They arbitrate jurisdictional conflicts. They disagree. They bicker. They change their minds.

In a normative sense, what judges "do" depends very much on one's views of judging. If one thinks that judging is properly confined to the law's "four corners", then judges act as neutral, passive recipients of opinions and arguments about that law. (1) They consider arguments, examine text, and render decisions that best honour the law that has been made. If judging also involves analysis of a society's core (if implicit) political agreements--and the degree to which state laws or actions honour those agreements--then judges are critical players in the mechanisms through which such agreement is tested. In post-war Canada, the judiciary clearly has taken on the second role as well as the first. Year after year, judges are drawn into disputes over the very values of our society, a trend that shows no signs of abating. (2)

In view of judges' continuing power, and the lack of political appetite to increase control over them (at least in Canada), it is natural that attention has turned to the process by which persons are nominated and ultimately appointed to the bench. Such attention is enhanced by the significant degree of turnover on the Supreme Court (a frequent subject of discussion) over the last few years. (3) The power to shape our courts determines Canada's legal landscape for years to come. Yet that power is subject to relatively few constitutional constraints. Section 96 of the Constitution Act, 1867 states that "The Governor General shall appoint the Judges of the Superior, District, and County Courts [in each Province]." (4) The appointment power for these courts is followed by sparse criteria for selection, and some basic guarantees of security of tenure. (5) Provincial courts are not mentioned. While there is a provision for Parliament to create a "General Court of Appeal for Canada", the power to appoint to such a court is not specified. (6) Even for those courts where an appointment power is included, the process is marked by an exceptionally narrow corridor. Subject to a few exceptions, a blank slate is provided to the Governor-in-Council (in essence, the Prime Minister and the Minister of Justice). Canada is operating a 21st-century judiciary bound by 19th-century rules concerning judge-making. (7)

In response to the dearth of structural constraints, a number of reforms drawing from different jurisdictions, including the United Kingdom, Germany, and the United States, have been proposed. The reforms generally begin with the argument that the nomination and appointment process must be more open and transparent, often focussing on the prospect of legislative branch involvement such as a Parliamentary hearing. Inevitably, objections are raised, some of which merit serious consideration and some of which are overstated. In the main, I believe that the debate has been distorted by the sense that the only choice is between introducing judicial hearings and maintaining the status quo. (8)

We need to think carefully about what we want judicial hearings to achieve, and whether they can achieve those ends. I am willing to be persuaded about hearings because I think we have only just begun to analyze them. (9) That said, judicial hearings that are a sham or farce--in that they cannot possibly reveal useful insights about the candidates or have any real impact on the subsequent appointment--are probably worse than no hearings at all.

While people almost invariably focus on the Supreme Court, the judiciary is more than that. Many important cases are settled in other courts. (10) In addition, the majority of Supreme Court justices are selected from among lower courts, for which the appointment process can be equally opaque (though some jurisdictions have made good progress). …

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