Parliamentarians have to work hard to get answers from Supreme Court nominee Kasirer

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Supreme Court nominee Nicholas Kasirer, a bilingual anglophone from Quebec, described himself as a judge who can bring people together, at a public hearing Thursday.

As an appeal court judge for the past 10 years, he said during a 15-minute opening statement, “I have always sought compromise.” And while judges’ right to dissent is an important aspect of their independence, the law is more consistent, predictable and effective “when we seek compromise.”

But the parliamentarians who sought to draw him out on his legal views mostly failed to elicit detailed answers – and sometimes, any answer at all. In question after question, Justice Kasirer declined to answer or gave a brief response. It was perhaps the most cautious performance since Canada adopted U.S.-style hearings, albeit with distinctly Canadian rules, in 2006, when Conservative nominee Marshall Rothstein announced, “The genie is out of the bottle.”

The 59-year-old father of three was more revealing when speaking about personal matters, such as the successes of his adult children, or the mentorship shown by his late parents, or the relationship with his wife of nearly 40 years. While he did not say much about his maternal grandfather, Arnold Heeney, who worked for Liberal prime minister Mackenzie King in the late 1930s, and then as secretary of cabinet from 1940 to 1949, he mentioned that his forebears on his father’s side had emigrated from Eastern Europe in the late 1940s, giving him an appreciation for the diversity of Canadian life.

When Conservative legal critic Lisa Raitt asked Justice Kasirer what he thinks of the Canadian Constitution’s notwithstanding clause, and in what circumstances it’s appropriate for Parliament to use it, he said it was not for him to say. (The clause allows legislators to override certain court decisions involving the Charter of Rights and Freedoms.)

When Senator Kim Pate asked Justice Kasirer whether judges should subject certain experts to heightened scrutiny when litigants don’t have equal access to their own experts to support their cases, and she referenced an academic article on the subject, the judge said he understood the question, but would have to read the article first.

When Anthony Housefather, the Liberal chair of the House justice committee, asked him for his general approach to Section 23 of the Charter of Rights and Freedoms, which protects English- and French-minority language rights, and how he decides whether a breach exists, he replied that a case is on the Supreme Court’s docket, and so he can’t answer the question. However, he said, one of his great joys over his career has been to work on the civil rights of linguistic minorities.

He similarly declined to answer how he balances Charter rights when they come into conflict, or what he thinks of the importance of judges being able to work in both English and French, or how he views the use of “reasonable hypothetical” cases when courts decide whether a mandatory-minimum sentence amounts to cruel and unusual punishment.

Canada’s approach to the nomination hearings differs from that of the United States in several ways. For one, the parliamentarians who participate do not get to recommend that he be confirmed. Confirmation is the prime minister’s prerogative. And for another, the hearings are chaired by a senior lawyer or academic, in this case University of Sherbrooke law dean Geneviève Cartier, who sets out the ground rules.

Parliamentarians, Ms. Cartier said, must make sure not to oblige the nominee to take a position on controversial issues, must avoid relitigating judgments he has handed down, and must avoid asking what Supreme Court opinions he would have supported in a given case. At least three times, she warned questioners that they were close to the line.

But Justice Kasirer, who was dean of McGill University law school from 2003 to 2009, appeared to draw his own lines, well beyond where Ms. Cartier drew hers.

“I don’t think you need to read the article to be able to answer the question,” Ms. Pate told The Globe and Mail later, adding that she has now given him the article in question, by academic Emma Cunliffe.

Mr. Housefather said, however, that he was satisfied by the answer he got on minority-language rights. “I think what Justice Kasirer gave was essentially his commitment to bilingualism and minorities in Canada,” he said after the 2½-hour session ended. “I don’t know that I was expecting much more.”

While the ground rules set out by Ms. Cartier are meant to avoid compromising questions such as “where do you stand on abortion rights,” Canada has a more general litmus test question on where judges stand on parliamentary supremacy. Ms. Raitt was one of a handful of Conservatives who asked a version of this question.

His reply was that judges hadn’t asked for the power to strike down laws; parliamentarians had given it to them. “It was thrust upon them,” he said, “and they’ve taken it up responsibly.”

MP Maxime Bernier, representing the People’s Party of Canada, asked whether he views the Constitution as a “living tree,” changing with the philosophy of the moment, as he described it, or a more stable, unchanging Constitution, in line with what he described as the vision of the Fathers of Confederation.

Justice Kasirer replied that judges may “use interpretations to face specific situations not anticipated by legislators. That’s not at all controversial. It’s the basic function of a judge.”

But he stayed away from supporting the living tree notion of Constitutional interpretation, which has been the norm in Canada since the judicial committee of the Privy Council in Britain declared Canadian women to be, in a legal sense, persons, in a 1929 case.

Just one woman applied out of the 12 candidates for the Supreme Court vacancy, created by the retirement of Justice Clément Gascon. At a morning hearing, former prime minister Kim Campbell, who chaired the non-partisan selection committee that presented a short list to Prime Minister Justin Trudeau, suggested longer lead times to help candidates of a variety of backgrounds learn more about what being a Supreme Court judge entails.

When Justice Kasirer was asked what could be done to encourage gender equality in institutions, he replied: “This is certainly a long-term project but I don’t see any easy answers.”