The federal court jurist was one of three candidates on a shortlist drawn up by a new advisory committee of MPs, legal experts and prominent Canadians that had been created by the previous Liberal government.
Ten days later, the new prime minister introduced his own historic reform to the occult practice of selecting justices for the country’s highest court. As a condition of employment, Rothstein had to appear before a nationally televised ad hoc, all-party committee of MPs and legal experts – the first Supreme Court nominee ever to do so. Three hours of genteel questioning followed.
Harper hailed the arrival of “more openness and accountability to the process of appointing people to our nation’s highest court. I believe the public deserves to know more about the individuals appointed to serve there, and the method by which they are appointed,” he said.
Eight years on, Harper faces his seventh and possibly last Supreme Court appointment (depending on the results of the 2015 election). Justice Louis LeBel turns 75 on Nov. 30, the mandatory retirement age. He gave his six-months’ notice on May 23.
But the selection process is, once again, shrouded in mystery.
The government slammed the door on parliamentary and public involvement in May, after a Globe and Mail story revealed explosive insider details about the government’s disastrous handling of the 2013 Marc Nadon appointment to replace another retiring justice. Justice Minister Peter MacKay later said the appointment process is “under reconsideration,” and it “remains to be determined” how the government will proceed.
With that, a decade of public and parliamentary access to the decision-making, however limited, collapsed.
The government had little more to say this week. “These appointments have always been a matter for the executive and will continue to be,” said Clarissa Lamb, spokeswomen for MacKay. She suggested consultations with prominent members of the legal community are underway to fill the looming LeBel vacancy.
Today, the exercise of selecting nine of the most important people in the country has regressed to a not-so-distant past when “more was known about the process for electing a new Pope than about the process for selecting a new Supreme Court Justice,” writes Adam Dodek, a Supreme Court scholar and law professor at the University of Ottawa. (His new study of the appointment process is to be published in the Supreme Court Law Review.)
The former Liberal government of Paul Martin and justice minister Irwin Cotler introduced several reforms beginning in 2004. They included publishing the job criteria and protocol for the process; inviting the public to suggest potential candidates; and creating an advisory committee to vet the longlist of potential candidates.
Once an appointee was named by the prime minister and cabinet, the justice minister was required publicly to defend the choice before a committee of parliamentarians and judicial and law society reps.
“We don’t know who they’ve consulted,” Cotler said of whatever process is currently underway to replace Justice LeBel. “We don’t what criteria they’re using. We have no advisory selection panel to assist. We have no parliamentary input. We have no public engagement. We’re just going to get an announcement.
“Appointing judges is one of the government’s most important responsibilities and it is important that Canadians understand and trust the appointment.
“It diminishes the court when you do this in secret.”
The utility of placing appointees under the spotlight at public hearings is widely debated. For starters, since 2006 the public hearing committees have been dominated by (Conservative) politicians. The government scrapped the judicial and law society seats on the committee after the Rothstein hearing.
What’s more, the potential ideological bent of lower-court judges under consideration is more readily available by reviewing their past reasons for judgment than from polite questioning by MPs.“These people have rendered a lot of decisions,” said Sébastien Grammond, a University of Ottawa, civil law expert. “It’s much more precise than anything that the judges will say at these hearings.
“What the media said the day after (the Rothstein public hearing) was that he had a good sense of humour — which is good — but says nothing about the qualities to be a good judge.”
And the final decision, as always, remains with the prime minister.
The trend in other countries is to reduce the power of politicians in the appointment process, Grammond said. The United Kingdom has an independent committee of non-politicians that proposes a single candidate. The justice minister has very limited discretion to reject the nominee.
Dodek found that attempts to reform the process, by both Liberal and Conservative governments, have largely failed to deliver on transparency and accountability.
Still, the transparency of the recent (if temporary) reforms – especially the public hearing before a committee of Parliament – resulted in significant public education about the role of the court and its judges, he concluded.
Since the 2006 Rothstein appointment, the Conservatives have named six other Supreme Court justices. (That includes the failed appointment of Nadon and the naming of his successor as one appointment.)
Four of the six underwent much the same process as Rothstein: vetted and shortlisted by an advisory committee of MPs; final selection by the prime minister and cabinet; then an appearance before an ad hoc committee of MPs.
Politics and expediency derailed the process for two others: Justices Thomas Cromwell and Clement Gascon.
The Cromwell appointment was swamped by the 2008 federal election call, then by the prorogation of Parliament. Gascon was the government’s replacement in June when the Supreme Court ruled Nadon was ineligible for the job because he wasn’t a member of Quebec’s judiciary. Both skipped questioning by a parliamentary committee and headed straight to the big bench.
With the coming LeBel vacancy, there’s “actually less information about the plan than there was about the appointment of Justice Gascon,” said Dodek.
Early in its tenure, the Conservative government “made positive steps. But as the whole Nadon fiasco showed, there is still too much of a secret nature of the process and lack of accountability.”
Justices appointed by Stephen Harper:
Justice Marshall Rothstein was elevated from the Federal Court of Appeal to the Supreme Court March 1, 2006. After Justice Louis LeBel, who turns 75 next week, Rothstein will be the next Supreme Court judge to hit mandatory retirement age, on Dec. 25, 2015.
Justice Thomas Cromwell was appointed to the Supreme Court Dec. 22, 2008. He had previously been on the Nova Scotia Court of Appeal.
Justice Michael Moldaver was elevated from the Court of Appeal for Ontario to the Supreme Court of Canada Oct. 21, 2011.
Justice Andromache Karakatsanis was appointed to the Supreme Court in October 2011. She had been a judge of the Court of Appeal for Ontario.
Justice Richard Wagner was appointed to the Supreme Court Oct. 5, 2012 from the Quebec Court of Appeal.
Justice Clément Gascon was appointed to the to the Supreme Court June 9, 2014 from the Quebec Court of Appeal.
Justices not appointed by Stephen Harper:
Chief Justice Beverley McLachlin, a former chief justice of the Supreme Court of British Colombia, was appointed to the Supreme Court in 1989 under the Brian Mulroney Progressive Conservative government. She was appointed chief justice in 2000, under the Jean Chretien Liberal government.
Justice Rosalie Silberman Abella was appointed to the Ontario Court of Appeal in 1992, then to the Supreme Court in 2004 under the federal Liberal government.
Justice Louis LeBel was appointed to the Quebec Court of Appeal on June 28, 1984 and to the Supreme Court of Canada on Jan. 7, 2000, under the federal Liberal government. He retires this month.
Supreme Court judgments that riled and rocked the Conservative government
Prime Minister Stephen Harper has appointed the majority of the justices on the current Supreme Court, but that doesn’t mean it has been friendly to his government. Here are a few examples:
– In June, for the first time in the country’s history, the court granted aboriginal title to a British Columbia native group over a vast piece of the province. The judgment could have profound implications on the Northern Gateway oilsands pipeline proposal, which the federal government backs, and has been described as a “game-changer” in the power dynamic between aboriginal Canadians and the Crown.
– Also in June, in a landmark ruling affirming Canadians’ right to online privacy, the court ruled that police need a search warrant to get information from Internet service providers about their subscribers’ identities during investigations. The ruling has political implications for the federal government’s current cyber-bullying bill, C-13.
– In April, the court declared that the federal government cannot make major changes to the Senate – such as indirect elections and term limits for senators – unilaterally, without any provincial consent. It was a major blow for the Conservatives, who had firmly argued they could enact some reforms without provincial signoff.
– In March, the court rejected the prime minister’s latest nominee to fill a vacancy on its bench. The landmark judgment nullified the government’s appointment October 2013 of Federal Court of Appeals Judge Marc Nadon on the grounds that he didn’t meet the eligibility criteria laid out in the Supreme Court Act.
– In December, 2013, the court struck down Canada’s prostitution laws as unconstitutional and gave Parliament a year to make them Charter-compliant. The unanimous ruling found that bawdy-house laws that make it a crime to be caught unlawfully in what is essentially a brothel are “grossly disproportionate” to the intent of the law, which is to prevent community nuisance. As a result, the government was forced to draft new prostitution laws, which come into force Dec. 6.
– In 2011, the court ruled that a controversial Vancouver supervised drug-injection clinic could stay open, calling the federal government’s move to shut it down a violation of the Charter of Rights and Freedoms. The ruling paved the way for a similar facility set to open in Montreal.
Original Article
Source: ottawacitizen.com/
Author: Ian MacLeod
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