Carissima Mathen is associate professor of law at the University of Ottawa.
The announcement that Quebec jurist Clément Gascon will occupy the Supreme Court seat vacated ten months ago by Morris Fish has drawn overwhelmingly favourable comment. Justice Gascon, a judge for twelve years, including two on Quebec’s highest court, is described as “a great nomination”, “practical-minded” and “efficient.” A former commercial litigator, he has continued to develop that expertise. And while Justice Gascon is “conservative,” commentators note, he does not wear it on his sleeve.
The praise for the Court’s newest member is buttressed by a palpable sense of relief. The appointment is the government’s latest move in what has been a truly bizarre spectacle, one that began with the abortive nomination of Federal Court judge Marc Nadon. Justice Nadon was Prime Minister Stephen Harper’s first choice – selected over several highly qualified and, to legal observers, more obvious candidates. In the end, though, the Supreme Court advised that, as neither a judge on a Quebec court nor a practising lawyer, Justice Nadon was ineligible for one of Quebec’s three seats.
Throughout the saga, the government has demonstrated an aversion to being told “no.” It almost surely ignored advice from its own lawyers that Justice Nadon’s appointment was risky. After the appointment was vacated, it impugned the integrity and motives of the Chief Justice of Canada. It shrugged off the question of whether it suggested to Justice Nadon the gambit of briefly returning to the Quebec bar for the sole purpose of being appointed. And it has appeared indifferent to the fact that the Court has been operating without its full complement, as mandated by the Constitution.
For the most part, people seem content that the Prime Minister has fulfilled his responsibility of appointing someone actually eligible to occupy the Court’s ninth seat. That a vital national institution is one step closer to being whole again (a second pending vacancy must be filled by November) is, obviously, a good thing. Nonetheless, and without impugning Justice Gascon’s qualifications, which are beyond reproach, legitimate questions remain.
Almost half of the Court’s docket is in one area: criminal law. It is the Court’s bread and butter. In Morris Fish, the Court lost one of its most experienced criminal jurists. It will lose another with the retirement of the generalist Louis LeBel later this year. The government has chosen as one of the replacements a specialist in corporate commercial law. The government may well have sound reasons for this, but it has offered none.
More serious is the unmistakable gender imbalance that has emerged in this government’s overall pattern of appointments. The Court’s failings on other measures of diversity continue apace, but on gender it has actually regressed.
If one includes Justice Nadon, the government has now nominated seven judges to the Supreme Court. Six have been men. Observing this point is not mere political correctness. Quite the opposite. Given the depth of excellent female candidates both at the bar, and on the bench, such a pattern of gendered appointments is not, plausibly, the random result of a merit-based process. The government may not be actively eschewing women. But neither is it especially concerned with ensuring gender parity at the highest court in the land. It is true that the government may return to four women with Justice LeBel’s replacement. But why wait? And, why not consider going even further?
The most obvious question, though, is why the Nadon saga happened at all. Quebec has hundreds of qualified lawyers and judges. Why reach beyond them to the Federal Court to fill a Quebec seat? The generally accepted wisdom is that, not finding someone conservative enough within Quebec’s legal community, the government turned to the Federal Court, which by virtue of the cases it hears tends to produce judges who are more deferential. Essentially, the government wanted judges of a particular ideology and was willing to go to great lengths to get them.
To some, this is perfectly acceptable. The government holds all the cards and is entitled to use them as it pleases. But having the power to do something does not make its exercise desirable. Selecting judges on the basis of ideology marks a dramatic turning point in how we think about the Court, and what kind of institution it should be. If the Court is to become more openly ideological, it should be the result of serious public dialogue, not Executive fiat.