Adam Dodek is a founding member of the University of Ottawa's Public Law Group and the author of The Canadian Constitution.
There is no question that the public hearing for Justice Russell Brown would have been the most interesting questioning of a Supreme Court nominee ever. We'll never know just how fascinating it would have been because Prime Minister Stephen Harper abandoned those public hearings after Globe and Mail reporter Sean Fine's exposé of the Justice Marc Nadon fiasco.
The Nadon hearing in 2013 was the last of four that had begun in 2006 with the appointment of Justice Marshall Rothstein. The others occurred in 2011 (Justice Andromache Karakatsanis and Justice Michael Moldaver) and 2012 (Justice Richard Wagner). In a study on changes to the appointment process from 2004 to 2014, I concluded that the public hearings had failed to deliver on their promises of increasing transparency and accountability in the appointment process. Things have only gone downhill since then.
The last three justices – Justice Clément Gascon and Justice Suzanne Côté in 2014 and now Justice Brown – have been appointed by news release. The sum total of the Prime Minister's explanation for appointing Justice Brown is so thin that it can be quoted here in its entirety: "I am pleased to announce the appointment of Mr. Justice Russell Brown to the Supreme Court of Canada. Mr. Justice Brown brings to the court wide experience as a law professor and legal scholar, a barrister, and a judge at both the trial court and appellate levels. His appointment is the result of broad consultations with prominent members of the legal community and we are confident he will be a strong addition to Canada's highest court." A total of 76 words that are more description than explanation.
The appointment of Justice Brown is attracting attention because before being appointed as a judge in 2013, he was a prolific blogger at the University of Alberta. He left a "digital trail" of provocative posts that included attacks on the Supreme Court, Justin Trudeau and cheerleading for Mr. Harper.
In Canada, we are not used to the appointment of judges who have said much of anything interesting, let alone controversial. While this surely should not disqualify Justice Brown from appointment, it would be reassuring for Canadians to hear directly from him that he will hear each case with an open mind.
What Canadians really need, however, is to hear from the Minister of Justice or from the Prime Minister as to why they chose Justice Brown over many other supremely qualified candidates in Alberta, Manitoba and Saskatchewan. Some have expressed the view that Justice Brown was chosen precisely because he had expressed such strong pro-Conservative and anti-opposition views.
Neither Justice Minister Peter MacKay nor Mr. Harper has said anything to disavow this sentiment. In fact, neither of them has uttered one word to explain why Justice Brown was chosen. This is despite Mr. Mackay's musings last month on the need for more transparency when it comes to the Supreme Court. He is absolutely right and that transparency should start with him and his boss. They owe the Canadian people an explanation. The cancellation of public hearings on Supreme Court nominees mean that we won't get one that way.
However, Mr. Harper may not be able to escape accountability completely on this appointment. We have now embarked on a long election campaign. He will face daily media questioning that he regularly is able to avoid. I hope that the media asks him why he chose Justice Brown, why he did not choose someone from Saskatchewan and what he expects from Justice Brown on the Supreme Court of Canada.
With such questioning, maybe Canadians will be able to get some of the accountability that the Prime Minister has successfully escaped so far in appointing Supreme Court judges.