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federal government reaffirmed its commitment originally made on December 12,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.
I begin by recalling and
reaffirming two themes which have characterized 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
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
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
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. I can only
undertake to follow it as the protocol by which I will be governed.
The first step in this
process is the identification of candidates. Candidates come from the region
where the vacancy originated – be it the Atlantic, Ontario, Quebec, the Prairies and the North, and British Columbia regions. This is a matter of
convention, except for Quebec where the Supreme Court Act establishes a
requirement that three of the justices must come from Quebec.
The candidates are drawn
from judges of the courts of jurisdictions in the region, particularly the
courts of appeal, as well from senior members of the Bar and leading academics
in the region. Sometimes, names may be first identified through previous
consultations concerning other judicial appointments.
In particular, the
identification and assessment of potential candidates is based on consultations
with various individuals. As Minister of Justice, I consult with:
- the Chief Justice of Canada
and perhaps other members of the Supreme Court of Canada
- the Chief Justices of the courts of the relevant region
- the Attorneys General of the relevant region;
- at least one senior member of the Canadian Bar Association;
- at least one senior member of the Law Society of the relevant region.
I may also consider input
from other interested persons, such as academics, and organisations who wish to
recommend a candidate for consideration. Anyone is free to recommend candidates
and indeed, some will choose to do so, by way of writing to the Minister of
Justice for example.
The second step is
assessment of the potential candidates. Here, the predominant consideration is
merit. In consultation with the Prime Minister, I use the following criteria,
divided into three main categories: professional capacity, personal
characteristics and diversity.
Under the heading of
professional capacity are the following considerations:
- Highest level of proficiency
in the law, superior intellectual ability and analytical and written skills;
- Proven ability to listen and
to maintain an open mind while hearing all sides of an argument;
- Decisiveness and soundness of judgement;
- Capacity to manage and share
consistently heavy workload in a collaborative context;
- Capacity to manage stress
and the pressures of the isolation of the judicial role;
- Strong cooperative interpersonal skills;
- Awareness of social context;
- Bilingual capacity; and
- Specific expertise required for
the Supreme Court. Expertise can be identified by the Court itself or by
Under the heading of
personal characteristics are the following items:
- Highest level of personal
and professional ethics: honesty; integrity; candour;
- Respect and consideration
for others: patience; courtesy; tact; humility; fairness; tolerance; and
- Personal sense of
responsibility: common sense; punctuality; reliability.
In terms of diversity it is
necessary to address the extent to which the composition of the Court
appropriately reflects the diversity of Canadian society.
Those are the criteria. In
reviewing the candidates, I may also consider jurisprudential profiles prepared
by the Department of Justice. These are intended to provide information about
volume of cases written, areas of expertise, the outcome of appeals of the
cases and the degree to which they were followed in lower courts.
After the above assessments
and consultations are completed, I discuss the candidates with the Prime
Minister. There may also have been previous exchanges with the Prime Minister.
A preferred candidate is then chosen. The Prime Minister, in turn, recommends a
candidate to Cabinet. This concludes the description of the current protocol or
The Justice Committee is now
engaged in an important review of the role Parliamentarians might play in the
appointments process. This review may include both a review of the process of
appointments and a review of the proposed nominee recommended by the process.
In terms of the review of
the process of appointment, we must bear in mind two factors as set forth
above: the constitutional framework which vests authority for the appointment
in the executive branch of government; and the consultative process established
to implement this constitutional responsibility and through which the
candidates are identified and evaluated. We are now adding a parliamentary
review to this process.
As for a review of the
proposed nominee the question now becomes: what is the form that this
parliamentary review might take respecting the vetting of the proposed nominee?
And what is the mechanism by which this review might be undertaken? There are a
number of options that can be considered.
First, the Committee could
undertake its review by hearing representations from the Minister of Justice as
to why the nominee was chosen. Second, the Committee could undertake a direct
interview of the candidate. Third, the review could be conducted by an
independent expert representative committee which would include representatives
There are other issues that
may arise apart from the modality of review. First, what might be the
appropriate composition of the Committee undertaking the review? Second, should
the process be confidential, or should some of the review be public? If the
context is a direct interview, what questions might be asked so as not to
embarrass the candidate or politicize the process?
In conclusion, may I
identify a number of guiding principles that might assist this review, while
helping to address some of the above questions. A number of these have already
been identified by your previous witnesses.
First, the merit principle.
The overriding objective of the appointments process is to ensure that the best
of candidates are appointed, based on merit. As the Prime Minister has pointed
out, a process that discourages good people from applying is one not worth
Also, the Supreme Court
bench should, to the extent possible, reflect the diversity of Canadian society.
A diverse bench ensures that different and plural perspectives are brought to
bear on the resolution of disputes.
Second, the system should
preserve the integrity of the Supreme Court and the court system. The judiciary
is an institution that is vital for the maintenance of the rule of law and the
health of Canada’s democracy. It must not be politicized, nor must any
damage be done to the reputation of its members.
Third, the system should
protect and promote judicial independence. The independence of the judiciary is
a cornerstone of our legal system and nothing should be done to undermine or
diminish this principle.
Fourth, the system should be
more transparent. As I mentioned, the present consultative process –
which is comprehensive – is simply not known. In the interests of
transparency I have shared with you the protocol describing this consultative
process. I trust that the release of this protocol will enhance public
confidence in the appointments process and help underscore the excellent
quality of appointments to the Court arrived at through this process.
Of course transparency must
be considered on a continuum. In addition to the protocol, we are now factoring
in a parliamentary review process. It may be suggested that complete transparency
can only be achieved by the kind of full public hearings we see in the American
process. However the objective of transparency must be weighed against the
other guiding principles I have outlined, including the integrity of the
institution and the continuing independence and capacity of individual judges.
Fifth, the system should
recognize the value of provincial input. Indeed, the present consultative
process does provide for important provincial input through the consultation
with appropriate provincial Chief Justices, Attorneys General, provincial bar
leaders, and other interested provincial bodies that may wish to make
Finally, the system should
recognize the value of Parliamentary input, as this process seeks to do.
1. See, Standing
Committee on Justice, Minutes of Proceedings and Evidence, March
2. Ibid., March