Now that the Supreme Court has finished hearing the legal challenge to the Prime Minister's appointment of Justice Marc Nadon, it is time to face facts: The process failed.
Stephen Harper's procedure for appointing Supreme Court judges has been promoted as providing transparency and accountability. The legal challenge to Justice Nadon's appointment shows that the process has failed in both respects.
First, transparency. When then-justice minister Rob Nicholson announced the members of the Supreme Court Selection Panel on June 11, 2013, he asserted that "[t]he Selection Panel plays a critical role in ensuring transparency and balance in the Supreme Court appointment process." In fact, the exact opposite has occurred. The selection panel – bound by some government imposed confidentiality obligations – obscures far more than it reveals. We know next to nothing about its work. We do not know how many candidates it evaluates in order to produce a shortlist of three. We do not know the criteria for its evaluation of the candidates. We do not know whether its recommendations are unanimous or by majority vote – although it appears from comments made by selection panel member and NDP Justice critic Françoise Boivin that it is the latter.
And then there's the promised accountability. To begin, in the almost four months since he announced the nomination of Justice Nadon, Minister of Justice Peter MacKay has been unable to utter four sentences of explanation as to why Justice Nadon was selected. When asked the day of the Supreme Court hearing, Mr. MacKay stated that "Mr. Justice Nadon is a highly qualified individual, a highly capable jurist." This is a conclusion, not an explanation. Every day that goes by without the government providing any explanation as to why Justice Nadon was chosen undermines the process, unfairly casts doubt on Justice Nadon and needlessly harms the government.
If the selection process is supposed to be a vetting process, it utterly failed in this respect. Justice Morris Fish announced his retirement on April 22, 2013, effective Aug. 31, 2013. This came as no surprise to anyone since Justice Fish had to retire by his 75th birthday, Nov. 16, 2013. Recent practice of retiring Supreme Court justices has been to give ample notice in advance of their retirement to allow the Prime Minister to select a new justice in time for the fall court sitting, which begins each October.
Because the Prime Minister had only recently appointed a judge from Quebec to the Supreme Court (Justice Richard Wagner in 2012), the government undoubtedly already had a ready list of candidates to fill Justice Fish's spot on the high court. In all likelihood, Justice Nadon was already on that list.
Yet it took the Prime Minister's Office nearly two months to appoint the five MPs to the Supreme Court Selection Panel. However, once the Prime Minister nominated Justice Nadon on Monday, Sept. 30, 2013, only two days were given for MPs, the press and the public to scrutinize the proposed appointment. Justice Nadon's interview with MPs took place on Wednesday, Oct. 2, 2013, and the questioning focused more on hockey than on law. The next day, the Prime Minister officially named Justice Nadon to the high court. All told, it was fewer than 72 hours from the first public announcement of Justice Nadon to his official appointment to the Court. He was sworn in Monday, Oct. 7, and on Tuesday, Oct., 8, Rocco Galati launched his legal challenge and Justice Nadon stepped aside from the court.
In retrospect, the government of Quebec and the legal community seems to have been taken by surprise by the appointment.
The public vetting process was simply too short and too rushed to be effective. Now the Supreme Court, Justice Nadon and the government are paying the price for Ottawa's foolhardy attempt to simply go through the motions of a vetting process.
At the minimum, we need two immediate changes to the process before the next appointment to replace Justice Louis Lebel later this year. First, there needs to be more time for MPs, the press and the public to investigate and review the nominee's body of work. The Americans provide several months in between the announcement of the nominee and their Senate hearing. Our government should be able to provide at least several weeks to do the same. Second, the Minister of Justice must also appear at the hearing to explain why the nominee was chosen.
If not, the government should simply scrap the charade that its appointment process has become.
Adam Dodek teaches at the University of Ottawa's law faculty. He is the author of The Canadian Constitution.