The newest member of the Supreme Court of Canada has sparked little enthusiasm for his musing about extending the public hearings he faced during his nomination to other judicial appointments.
In an interview in The Globe and Mail Thursday, Mr. Justice Richard Wagner also proposed a national summit between lawmakers and the judiciary to discuss ways to make the justice system more accessible to ordinary Canadians.
“Wow! New Supreme Court judge says every fed apptd judge should face parliamentary grilling like he did,” University of Ottawa law professor Adam Dodek tweeted when the story came out.
It is rare for a new Supreme Court judge to grant interviews, and especially for one to “wade into contentious policy issues like the appointment process for judges,” Prof. Dodek later told The Globe and Mail.
Reactions ranged from blogging Toronto lawyer Garry Wise, who felt Judge Wagner’s concerns were “judicial apple pie,” to University of Montreal law professor Stéphane Beaulac, who said he was flabbergasted by the comments.
Judge Wagner’s views fit the profile of an ideological magistrate who believes the judiciary should be less active and ought to defer to lawmakers, Prof. Beaulac said. “I am floored … by [Judge Wagner’s] haste or the usefulness of entering an institution and discrediting it at the first opportunity. It’s absurd.”
The judge’s comments “are part of a rhetoric that undermines the credibility of the judiciary in Canada … It’s one thing to say that the system isn’t perfect, it’s another to say that it’s in crisis,” Prof. Beaulac said.
“There is not much support in the legal profession for the idea that all judges should be subject to the sort of parliamentary vetting that Judge Wagner proposes. It is an American practice that does not have much appeal north of the border.”
Others noted that the current public hearings for Supreme Court nominees is more political theatre than actual hiring process. “If it’s a foregone conclusion, what’s the point?” said Charlotte Wolters of the Ottawa-based Women’s Legal Mentorship Program.
Claude Provencher, executive director of the Quebec bar association, said the current nomination system for judges, while not involving public hearings, is fair and involves a selection panel that short-lists a selection of competent candidates before the justice minister has a say in the process.
Judge Wagner’s concerns about access to the justice system were more broadly shared.
Thomas Conway, treasurer of the Law Society of Upper Canada, said the Ontario regulator agreed that the average citizen finds it increasingly harder to turn to the justice system.
“The issue of access and affordability has been front and centre,” echoed Bruce LeRose, president of the Law Society of British Columbia.
Mr. Provencher said: “Each year there’s a whole section of society that is left out. We’re talking increasingly of judicial drop-outs.”
Still, there was no consensus on whether a national summit, as advocated by Judge Wagner, would alleviate the problem. Having lawmakers mingle together with judge can raise concerns that it would politicize the judiciary, Ms. Wolters said.
“Let’s not get too philosophical. Sitting around and talking about it at a high level is not going to get things done,” Mr. Wise said.