The two Ontario appellate judges nominated by Prime Minister Stephen Harper to join the Supreme Court of Canada – Michael Moldaver and Andromache Karakatsanis – are eminently qualified for the daunting role that lies ahead. In making this selection, the Prime Minister had both an easy and difficult task – the bench in Ontario is deep, the number of excellent appointments many, and it could not have been easy to select two from among so many who would bring so much to a place so important in the legal and political life of Canada.
That said, it is a day tinged with disappointment. This is because the government modified the selection process for these two vacancies to involve a screening committee with only elected parliamentarians (three Conservatives, one Liberal and one New Democrat).
There is no reason to believe the committee members were not committed to the task of selecting qualified applicants, and it appears the committee consulted broadly and took its deliberations seriously. And the committee, of course, did not make the final decision. In our system, the buck stops at the Prime Minister's desk. Nonetheless, the premise of this selection process is that the judges of the Supreme Court should emerge from the will of the majority through this parliamentary filter.
As originally developed during the Liberal government of Paul Martin, the screening committee involved members of Parliament, but also leaders in the legal community and representatives from non-partisan bodies within that community. The advisory committee developed in 2005 included an MP from each party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial attorneys-general, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges.
While this process had not concluded when the 2006 election was called, the Conservative government decided to complete the selection process that had been started under the previous government. This led to the appointment of Mr. Justice Marshall Rothstein, who also appeared before a parliamentary committee to address any questions posed by that body in February of 2006, chaired by then-justice minister Vic Toews.
This hybrid model was far from perfect, but it signalled that, while the voices of elected parliamentarians matter, it was also vital that the selection of judges not be, and not be seen to be, simply an expression of majority will. The court's mandate to be vigilant over minority rights and interests is a fundamental aspect of Canadian democracy. This mandate is not one crafted by judges for themselves, but rather one crafted by those political leaders who designed our Charter of Rights and Freedoms and invested judges with the role of reviewing government action, including legislation, to ensure it does not unreasonably infringe those Charter protections.
Whether in the context of the Charter, or the other legal contexts in which the rights and interests of the vulnerable are at stake, these protections are not designed to give judges power but rather to ensure the legal accountability of those in power. The rule of law is a cornerstone of our constitutional tradition, and selecting judges through a process in which those elected to represent the will of the majority have the most important say is out of tune with this critical aspect of our democratic tradition.
The Prime Minister deserves credit for resisting the temptation to politicize the judiciary, and the Supreme Court in particular, through appointments motivated by partisanship. But the line between a merit-based and a partisan process is a fragile one, and is not helped by privileging the lens of parliamentarians and removing the filter of non-partisan, public-interest expertise. This is one of those times when the success of the outcome does not remove concerns about the process.
The means of selecting our judges is as important as the ends. To serve democracy, judges need to be accountable to the public. Public confidence, in turn, flows from the independence, impartiality and credibility of the court. These are the very attributes that should animate the selection process for Supreme Court justices. We are not there yet.
Lorne Sossin is the dean of Osgoode Hall Law School at York University.