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Fixing the judicial selection process

Diversity, Quebec and the fallout from Nadon

Supreme Court of Canada
Photo by/par John Major

After the Harper Government’s failure to appoint Justice Marc Nadon to the Supreme Court of Canada, court-watchers expected one of two things: either Ottawa would concede its loss and chose a non-controversial consensus pick to fill the vacancy created by Justice Louis Lebel’s imminent retirement; or, the Prime Minister would double down.

With the Harper’s decision to bump Federal Court of Appeal Judge Robert Mainville to the Quebec Court of Appeal earlier this month, it seems pretty clear that Harper has opted for the latter approach.

Many jurists see Justice Mainville’s lateral move as a ploy to make him eligible for Lebel’s seat, which will be open in November. While Ottawa was initially coy on the topic, Justice Minister Peter MacKay appeared to accidentally tip his hand during Question Period on June 16.

“I believe his wealth of legal knowledge will be welcome at the Supreme Court and will be of significant benefit to the Quebec Court of Appeal,” MacKay told the House of Commons.

MacKay later tried to backpedal, suggesting that he meant the Supreme Court of Quebec — ostensibly, the Court of Appeal — and that Mainville’s appointment had nothing to do with Lebel’s impending departure.

But the cat, it appears, is out of the bag.

A day? A week? A month?

Assuming MacKay’s slip-of-the-tongue did betray a broader plot, it would seem to be a clear indication that the Conservative government is looking to test a theory put out by Justice Michael Moldaver.

In his dissenting opinion on the Nadon reference, Justice Moldaver waxed on just how narrowly the court should interpret section six of the Supreme Court Act: that justices must come “from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.”

While the majority court did decide that a lawyer must be of 10 years standing in order to qualify, they didn’t grapple the matter of whether one day — or, in Mainville’s case, six months — is sufficient time on a provincial bench to qualify for a seat on the top court.

“The words ‘from among’ found in s. 6 convey no temporal meaning,” wrote the majority.

Moldaver underlined the issue with that reading.

“A former Quebec Superior Court judge or advocate of 10 years’ standing at the Quebec bar could rejoin that bar for a day and thereby regain his or her eligibility for appointment to this Court. In my view, this exposes the hollowness of the currency requirement,” Moldaver wrote.

Naturally, if Justice Mainville really is destined for the top court, there will be another legal battle that will define just where those parameters fall.

Paul Slansky, who intervened in the Nadon reference on behalf of the Constitutional Rights Centre, says that appointing Mainville is a non-starter.

“This is contrary to not only the spirit, but the letter of the law,” he says.

Slansky points out there is an entire contingent of judges on the Quebec courts and in the bar – all evidently eligible – who should be called upon. It’s “nonsense,” he says, to worry that disallowing Mainville will limit the pool of eligible appointees.

Pierre Thibault, a professor in the faculty of civil law at the University of Ottawa, isn’t sure whether the appointment will stand up.

“I think that [the Supreme Court] didn’t want to give their ruling without any facts relating to that. Is a day enough? I don’t think so. Is a week enough? I don’t think so. So where to draw the line to respect the decision of the Supreme Court? I don’t know where to draw the line. Maybe one day we’ll have to do it,” Thibault says.

That’s a “maybe yes, maybe no.”

Quebec’s interests

But if Rocco Galati gets his way, the process won’t get that far.

Galati is the thorn in the side of government who challenged Nadon’s original appointment. He’s been disparagingly referred to by the Justice Minister as “a downtown Toronto lawyer who appears to be trying to block and limit the pool of jurists who are available to be appointed to superior courts in the province of Quebec.”

He’s challenging Mainville’s trip to the Quebec court under section 98 of the Constitution Act 1867 using one simple line that reads: “the Judges of the Courts of Quebec shall be selected from the Bar of that Province.”

Whether or not this challenge will be allowed remains to be seen, but the debate is rife over whether Galati’s case is a slippery slope toward limiting the pool of eligible Quebec judges, or whether it fits with the spirit of Quebec’s special status.

Slansky says the Mainville appointment raises the same issues highlighted by the Court in the Nadon reference.

“They’ve already decided this issue in Nadon: that a judge of the Federal Court is not a member of the Quebec bar,” he says.

He says that this isn’t merely a matter of meeting the letter of a 150-year-old document that was drawn-up before the existence of the Federal Court; it’s a matter of intent.

“There were constitutional compromises being made when the Supreme Court was created,” he says. One of them was the eligibility requirements for Quebec’s seats. “It’s there for a reason — to protect Quebec’s interests in the judiciary” – namely, to guard Quebec’s unique civil law jurisdiction, and its distinct culture.

Appointing Federal Court judges skews that balance, Slansky says. He points out that judges who sit on that bench tend not to be just more pro-federal government, but more deferential to parliamentary supremacy and, flatly, federalist, than the Quebec courts.

Thibault disagrees that Justice Mainville is ineligible.

“I don’t think we should interpret section 98 of the Constitution so strictly speaking,” he says. “If it’s strictly interpreted, than two-thirds of [Quebec] judicial appointments would be illegal.”

Strictly speaking, he says, judges from the Quebec courts are no longer members of the bar and would thus be illegible. So appointing a Superior Court judge to the Court of Appeal would be improper, under that reading.

“The result is absurd,” says Thibault. “This is where I consider an appointment to the Quebec Court of Appeal as a promotion or a transfer. The same reasoning should apply to the Federal Court or the Federal Court of Appeal.”

That is, so long as the federal judge was a member of the Quebec bar prior to their appointment.

“Justice Mainville has been trained in civil law anyway. It’s not a big difference,” says Thibault.

He gives the example of a criminal lawyer being appointed to the Quebec Superior Court — they may have never properly tried a civil law case, yet they’re still eligible.

“You cannot always appoint the person who knows everything. We don’t know everything,” he says.

What’s more, Thibault says, Justice Mainville would have had to deal with a fair number of civil law cases while on the Federal Court of Appeal.

Aside from his eligibility, there’s little mystery over Harper’s insistence on federal judges. Harper’s preoccupation with the federal courts appears to be a purely political manoeuvre.

“That’s an opinion that I think is shared by a number of people, that the Harper Government wanted to appoint more conservative judges, and he seems to have found them on the Federal Court and on the Federal Court of Appeal,” Thibault says.

That appears to be more a matter of perception than fact. Thibault and Slansky agree that the Quebec courts haven’t substantively changed in recent years — and certainly not since Harper appointed Justice Richard Wagner to fill one of Quebec’s vacancies in 2012.

“There’s a perception that Quebec judges are more liberal-minded. I don’t find it to be that way to any significant extent,” says Slansky.

He figures the problem arises from Ottawa’s growing distrust of the Supreme Court, which has axed several federal laws in recent years, much to the government’s chagrin. But Slansky says the government has no one to blame for that but itself: “Their approach to constitutional issues, and the Supreme Court, is highly ignorant,” he says.

A dearth of women.

When Justice Mainville’s supposed candidacy was revealed, another round of questions arose over why the Harper Government is widening the gender gap on the top court.

Assuming Justice Lebel is replaced by a man, the six-to-three male-to-female ratio will continue.

“It’s frustrating from an equity perspective,” says Krystle Gill, an associate lawyer with Hart Legal who also co-authored a feature for the CBA on the Supreme Court’s issue with women.

“It would be ideal for Canadians to look at the court and see themselves represented in some way. If the court continues to lose touch with Canadians, it tends to lose credibility,” she told National. “Obviously, you want to have qualified individuals. But there’s that diverse background that can help illuminate issues.”

Ottawa appointed only two non-white judges from 2009 to 2012. Women, meanwhile, make up barely a third of Federal Court judges.

That’s a huge gap, considering that the Law Society of Upper Canada found that nearly 20 per cent of its members are non-white, and 40 per cent are women, according to a survey sent to its members, which garnered over 23,000 responses.

Gill’s research, however, appears to expose the problem: women make up only 25 per cent of the membership of Federal Judicial Advisory Committees. For British Columbia and parts of Ontario, the boards are all-male.

Minister MacKay poured gasoline on the fire when lawyers reported that he made comments suggesting that women aren’t applying for court vacancies because they’re too busy being moms.

Gill says there’s no real evidence to back up MacKay’s claim that women aren’t applying. What’s more, provincial statistics show that women are applying in about equal numbers as their male counterparts.

Indeed, in British Columbia, where the appointment review panel publishes statistics on those who apply for positions on the court, women sent virtually the same number of applications for spots on the provincial court as men.

A matter of process

At the end of the day, all three issues are interwoven in a broader discussion about how Canada selects and appoints judicial candidates.

Slansky says there are issues with the Federal Judicial Advisory Committee, including its makeup and how the committee operates. “The process has become politicized,” he says.

Each province has at least one of advisory boards — Ontario has three, and Quebec has two — with eight members. One is chosen by the chief justice of the province’s highest court, three are chosen by the Minister of Justice, one is chosen jointly between the province and the federal minister, and the rest are chosen by the minister from lists submitted by the law associations and law enforcement.

That means the federal government has quite a bit of leeway in choosing who picks the federal justices.

“There are too many vested interests,” says Slansky, and it’s resulting in unfortunate consequences. “The appointment process is, whether intentionally or not, not resulting in the proper diversity.”

When it comes to selecting Supreme Court justices, the criticisms grow even sharper.

“This is an absurd process,” Emmett Macfarlane, an assistant professor at the University of Waterloo, told National in May. “The opposition has risked legitimating this opaque process by taking part in this committee where, not only are we not allowed to know what the substantive discussions were, but we’re not even allowed to know how they voted, or whether they were unanimous.”

That process — whereby the House of Commons Justice Committee pares down the long list of candidates to three — is under review, and was dispensed with for Harper’s appointment of Justice Clement Gascon.

That, for Slansky, makes it clear that the Supreme Court selection process is broken.

“They didn’t follow their own policy, or the process they said they were adopting,” he says. “The results make it clear that something is wrong.”

The CBA believes reform is needed to improve the selection process of justices to the Supreme Court of Canada. CBA president Fred Headon is scheduled to outline the association’s plan Friday during a speech to the CBA’s 2014 National Constitutional and Human Rights Conference in Ottawa.

Thibault figures it’s time to insert more provincial considerations into the process. He says it should be the premiers, not the House of Commons, who should be drafting the shortlist.

For Gill, a lot of the problems — namely, the need for more gender balance on the courts — could be solved by opening up the process and offering more insight into who is applying for positions on the bench.

“If they were to become more transparent in the application process, we’d have more trust in them to begin with, and more trust in what they’re saying, and the process would just be more fair,” she says.