Justice Minister Peter MacKay is declining to provide a detailed explanation behind the government's choice for the Supreme Court this week of Justice Russ Brown, a conservative libertarian who has two years of experience as a judge.
Mr. MacKay told The Globe on Wednesday that he was impressed by some of Justice Brown's judgments – but he would not specify them.
"Oh, I'm not going to refer to which ones," he said.
The government has said little to explain or justify Prime Minister Stephen Harper's choice of Justice Brown, a former law professor at the University of Alberta and before that a business lawyer in Vancouver, Victoria and Edmonton. The Prime Minister issued a one-paragraph quotation, along with biographical details about the judge, which was similar to the one-paragraph quotations he issued when he named Suzanne Côté, Clément Gascon and Marc Nadon to the Supreme Court.
Justice Brown himself, once a formidable blogger at the University of Alberta law school – mocking Canada's Anglican Church as "dogmatically PC" and "nauseatingly self-righteous" and explaining that he views himself as a conservative libertarian – has declined to be interviewed.
By Canadian convention on regional representation on the court, Mr. Harper had a wide field to choose from – Manitoba, Saskatchewan and Alberta. Justice Marshall Rothstein, whose retirement at age 75 created the opening, is from Manitoba. Some in the legal community in Saskatchewan hoped Mr. Harper would consider top judges from that province, such as Chief Justice Robert Richards, or Court of Appeal Justice Georgina Jackson, or others with ties to Saskatchewan, such as Justice Michael Ryer of the Federal Court of Appeal in Ottawa.
No Saskatchewan judge has been appointed since Emmett Hall in 1962. He retired in 1973. If Mr. Brown, who is turning 50 in September, serves until mandatory retirement, it will be 2040 before a Saskatchewan judge has another chance.
Brent Cotter, a law professor at the University of Saskatchewan, served on a nine-member parliamentary screening committee that created an unranked short list of three names, which led to Mr. Harper's 2006 selection of Justice Rothstein, who then went before a parliamentary committee in a televised hearing, the first of its kind in Canada.
Prof. Cotter said he did not see it as Saskatchewan's "turn," but felt that candidates from the province were deserving of serious consideration. It was "a great disappointment, to say the least," that they were passed over, he said.
The former deputy attorney-general for Saskatchewan said the appointment process has deteriorated.
"I think it's fair to say that the process for screening candidates and recommending a short list for the Supreme Court of Canada has become either no process at all or a shambles, notwithstanding the commitments of various governments and celebration of some of the processes they actually instituted and then walked away from."
Mr. MacKay did offer a brief overview of what the government liked about Justice Brown: "He's an outstanding jurist. He has been involved in his community actively. He's also served not only the bench in Alberta, he serves in the North, he's spent time in British Columbia, so he has certainly deep roots in the region, which is one of the requirements, one of the considerations for his elevation. And so he has distinguished himself in the law, and for that reason, on balance, and taking in a number of other important considerations, he now will join the Supreme Court of Canada, which is the pinnacle of our judiciary in Canada."
But Prof. Cotter said Mr. MacKay should do more to inform Canadians of why the government chose a particular judge. "I would have liked to have heard that Mr. MacKay was prepared to say how he and the Prime Minister exercised their appointing authority in this case. We repose a fair amount of authority in our cabinet ministers but we also are entitled to have a degree of accountability."
Mr. Harper promised before he came to office to allow parliamentarians to ask questions of an appointee. He kept that promise with his first appointment, of Justice Rothstein, and again with justices Michael Moldaver, Andromache Karakatsanis, Richard Wagner and Justice Nadon – failing to hold a hearing for just one appointee in his first six, Thomas Cromwell, in 2008.
But then came the failed appointment of Justice Nadon, whom the Supreme Court rejected as legally unqualified. Afterward, The Globe published a story on the secret short list behind his appointment, and the government responded by cancelling parliamentary involvement in screening, according to a Justice Department document released in response to a Liberal Party request. It also cancelled the public hearings of appointees. Justice Brown is the third judge appointed to the Supreme Court in 15 months without parliamentary involvement.
Before the Conservative government shut down the parliamentary screening committees, candidates were asked to choose five judgments in various categories, including constitutional law, to show the committee. The appointee's selection of five judgments then became publicly available online to Canadians.
Parliament's involvement in the selection process began in 2004 under the Liberal government of Paul Martin. After a Supreme Court appointment was announced, then-justice minister Irwin Cotler appeared before a parliamentary committee to explain the government's choice.