JUST Committee Report
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The NDP dissents on several aspects of the Report of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness on reform of the appointment process to the Supreme Court of Canada. Our dissenting points focus on enhancing the open, transparent and democratic nature of the process, and on clarifying in more detail how the processes, both interim and long-term, will operate.
1. Constitutional Parameters of the debate
The “Legal Background” section of the Committee report omits to mention the constitutional debate that determines the parameters of potential reform. Briefly stated, the arguments in the debate are as follows:
The Supreme Court Act, in section 4, states that appointments to the Supreme Court must be made by the Governor-in-Council. The Supreme Court Act is not technically part of the Canadian constitution. However, s. 41(d) of the Constitution Act, 1982 states that any amendment to “the composition of the Supreme Court of Canada” requires unanimous consent of the federal and provincial legislatures, while s.42(d) states that any amendment to “the Supreme Court of Canada” must be accomplished following the 7/50 formula. This would appear to imply that any substantial changes to the Supreme Court Act would require constitutional amendment. However, there is some academic debate on this point — it is not even certain that ss. 41 and 42 of the Constitution Act, 1982 can apply to the Supreme Court Act, as they are supposed to apply exclusively to “the Constitution of Canada”, of which the Supreme Court Act is not technically a part.
This constitutional question probably cannot be resolved without, ironically enough, a reference to the Supreme Court of Canada. In the absence of this, the safest route to follow is to assume that no change to the Supreme Court Act is possible without constitutional amendment. This means that the final decision on appointments must continue to rest with the Governor-in-Council. Thus, suggestions such as binding Parliamentary confirmation hearings or a Parliamentary veto can be presumed to be unconstitutional. This report is written on that assumption, with the caveat that the constitutional question has never been firmly resolved.
2. Appearance of the Minister of Justice before the Justice Committee
We agree that the Minister of Justice should appear before the Justice Committee in order to explain the consultation process and the reasons for his/her choice, both in the case of the “short-term” process to be used for the next two appointments and once the long-term process of the Advisory Committee has been fully implemented.
However, we insist that the Minister’s appearance should take place before the actual appointment is made by the Governor-in-Council, not after the candidate has been appointed. The reason for this is that, if ever the committee should find that the Minister has not followed due process or exercised due diligence in making his/her choice, there must be a window for this finding to have an actual effect on the appointment of the candidate in question. If the Minister appears in an ex post facto hearing, there is no longer any reasonable possibility of the Committee’s finding affecting the appointment, as appointed judges remain in office “during good behaviour”. Although we recognize that the authority to appoint Supreme Court judges is constitutionally vested in the Governor-in-Council, so any finding of the committee can only be advisory in nature, it is nevertheless imperative that the Governor-in-Council have the opportunity to accept or reject the Committee’s advice, rather than simply receiving this advice after the fact.
By having the Minister of Justice appear before the appointment is made, we would enhance the democratic nature of the appointment process by ensuring that Parliamentary scrutiny could legitimately affect the process when circumstances warrant.
It has been suggested that requiring an a priori appearance by the Minister might hamper the appointments process, in the case where at appointment must be made while Parliament is not sitting. It should be noted that this problem might arise if there is a federal election in June 2004. However, if this case should indeed arise, the Prime Minister can simply convene an ad hoc committee of Parliamentarians to temporarily fill the Justice Committee’s role. The timing of the appointments, not to mention the timing of a federal election, must not be allowed to interfere with the democratic nature of the appointments process that we are establishing.
3. Composition and Functioning of the Advisory Committee
In our opinion, we must be more clear and precise in terms of the composition and functioning of the Advisory Committee that will screen potential candidates to the Supreme Court. Although the report states that “further study is needed” on this point, it is unrealistic to expect this issue to return to the Justice Committee in the near future. It is therefore of paramount importance to outline certain parameters for the committee at this stage.
First, the Parliamentarians who sit on the Advisory Committee must be Members of the House of Commons, and not Senators. The point of having Parliamentarians on this committee is to increase the democratic nature of the appointments process, and this purpose would not be served by having unelected Senators on the Advisory Committee.
Second, the provincial representation on the committee is essential, but we must specify that this representation should come from the region from which the judge will be drawn. To have representatives from each province on the committee would needlessly increase the size of the committee, and would serve no useful purpose.
Thirdly, it should be specified that the Advisory Committee will not operate on the principle of unanimous consent, but on that of majority opinion. To require unanimous consent would be to give a “veto” over candidates to every political party, and indeed, to every member of the committee, which is an undesirable and undemocratic outcome.
4. Review of the Advisory Committee process
The NDP would like to emphasize that the steps being taken right now by the government are not necessarily the final word on the modification of the judicial appointment process in Canada. We believe that the establishment of an Advisory Committee is a necessary, positive and long-overdue modification to the current process. Furthermore, we agree that a more dramatic reform of the process would, at this point, be premature.
We do not want to make any move that will threaten the judges’ ability to make independent and impartial decisions, that will make the process vulnerable to political manipulation, or that will go down the road of a U.S.-style political circus, as some would want us to.
However, we feel that it is important to underline that we must carefully monitor the functioning of the system we are currently putting in place in order to make sure that it is achieving the stated goal of making the appointment process more open, democratic, and comprehensible to Canadians. If this is not the case, then we must re-examine the process without delay and proceed by incremental steps towards a still more open, transparent and accessible method of appointment.
For this reason, we insist that the long-term, “Advisory Committee” process should be reviewed by the Justice Committee after it has been used once in the appointment of a Supreme Court Justice. At this point, the Committee can evaluate the functioning of the process and make any necessary modifications, or else design a new process altogether that will better reflect the democratic values that we are seeking to protect.
Ottawa, May 5, 2004
Lorne Nystrom M.P.
NDP Justice critic