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Liberal MP Irwin Cotler stands during Question Period in the House of Commons on Parliament Hill in Ottawa on Wednesday, December 14, 2011. (Sean Kilpatrick/THE CANADIAN PRESS)
Liberal MP Irwin Cotler stands during Question Period in the House of Commons on Parliament Hill in Ottawa on Wednesday, December 14, 2011. (Sean Kilpatrick/THE CANADIAN PRESS)

Irwin Cotler

The battle over judicial appointments – yet again Add to ...

Irwin Cotler is the Member of Parliament for Mount Royal, and a former minister of justice and attorney general of Canada. He is a professor of law (emeritus) at McGill University.

The announcement recently that the government of Quebec would seek guidance from the province’s highest court regarding the eligibility of certain judges is but the latest salvo in a drawn-out saga between Quebec and Ottawa regarding judicial appointments. Much like the Marc Nadon episode that saw the first-ever rejection of a Supreme Court appointment in Canadian history, this latest act was both foreseeable and avoidable, and reflective of a larger problem in how the Conservative government approaches the judiciary in general and, in particular, the uniqueness of Quebec.

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As a brief overview – and at the risk of over-simplification – it should be recalled that Quebec and the rest of Canada have different legal systems. Namely, Quebec uses the civil law while the rest of Canada operates under the common law. To ensure Quebec’s legal system and its societal values are represented at the Supreme Court, three of its nine seats are allotted to judges from the province. Similarly, the Constitution ensures that judges appointed by the federal government to Quebec courts have the requisite Quebec experience.

When Justice Minister Peter MacKay appointed Federal Court of Appeal judge Marc Nadon to the Supreme Court, a legal challenge resulted in his being found ineligible owing, in part, to the need to ensure Quebec’s interests were protected at the Supreme Court. While another judge was appointed in his stead to the Supreme Court, the government then quietly announced the appointment of Federal Court judge Robert Mainville to the Quebec Court of Appeal, leading to speculation that he too might be appointed to the Supreme Court when a Quebec vacancy arises this fall. The moving of a judge from Federal Court to Quebec Court to Supreme Court might appear to comply with the Nadon decision, but it raises important questions about the judicial appointment process and whether judges should be moved like chess pieces to seemingly do indirectly that which the Supreme Court proclaimed could not be done directly.

Accordingly, the Quebec reference case announced recently asks whether Justice Mainville is eligible for appointment to the Quebec Court of Appeal, delaying his swearing-in and raising the question of whether he would be eligible for a later elevation to the Supreme Court for one of the three Quebec seats if this is indeed the government’s plan.

These are important – if technical – legal questions, but they should have not have to come before the courts as part of the judicial appointments process. Asking the courts to pronounce upon them could have been avoided by having a principled and effective appointments process in place and, specifically, by emphasizing the need for open and co-operative federalism when it comes to judicial appointments.

Put another way, would Quebec question the appointment of a judge to its courts had it been meaningfully consulted? Would Justice Nadon have been appointed to the Supreme Court if Ottawa had listened to Quebec’s justice minister, who has noted that Justice Nadon did not figure on his short list at the time? Would any of these appointments have occurred if Ottawa had carefully considered why Quebec is protected in a particular way under the Constitution when it comes to judicial appointments?

None of this is to cast aspersions on Justices Nadon or Mainville, both of whom have served with distinction and will continue to do so. However, Quebec’s unique juridical role is too often overlooked by Ottawa – as are other legal traditions present in this country, including Aboriginal legal traditions.

As well, beyond simply listening to Quebec and engaging in constructive dialogue – a minimal but necessary requirement – what is needed is for the government to put in place a revamped appointments process. Indeed, its most recent appointment of Justice Clément Gascon earlier this summer was done without involvement by a judicial advisory selection panel, and without Parliamentary oversight – the first time in nearly a decade that MPs were excluded from the process.

Yet, while oversight and transparency must be elements of any process, I would propose that the Conservative government adopt a more representative and inclusive approach similar to that which I employed as minister of justice, in consultation with Parliament. That approach could include a more broadly representative and inclusive judicial advisory selection panel, where no political party has a majority (as the government now gives itself), parliamentarians as a whole are in the minority, and the provincial attorney general and provincial bar are represented, along with the Canadian Bar Association and the Canadian Judicial Conference; a protocol of consultation published by the minister of justice, setting out whom the minister intends to consult and with whom the advisory panel will meet; a public announcement by the minister of the criteria by which each candidate will be evaluated; and a final hearing at which the minister of justice – and not only the nominee – answers questions from parliamentarians, notably regarding how the nominee meets the established criteria.

The need for a principled, representative, inclusive, transparent and accountable judicial appointments process – including sufficient and timely provincial consultation – should be clear. Unfortunately, the current Conservative government has yet to establish such a process, to the detriment of Quebec and the judiciary as a whole. One hopes it will finally do so in time to fill the anticipated Supreme Court vacancy for Quebec this fall.

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