In 1986, while studying at the Sorbonne, Nicholas Kasirer wrote a letter to the editor of The Globe and Mail reflecting on the manners of Parisians – or rather the lack thereof. Then in his mid-20s, the future Supreme Court of Canada justice displayed the keen wit and gift for turning a phrase that alone might have made him a welcome addition to the country’s top court.
“Even the most sophisticated Montreal or Toronto ‘gueule’ is no match for the icy Parisian stare,” he wrote. “Indeed, niceness is as much a part of our national ethic that when we say ‘pardon’ as we get off of Chatelet-Les-Halles we mean ‘excuse me’ and not ‘get the hell out of my way or I’ll turn your foot into a crêpe,’ which is the Île-de-France translation.”
That all-Canadian niceness was certainly evident last month as Justice Kasirer fielded questions from MPs and senators seeking to probe his views on everything from the supremacy of Parliament to minority-language rights. Nominated by Prime Minister Justin Trudeau to fill an opening on the court left by retiring Quebec judge Clément Gascon, Justice Kasirer was careful not to tip his hand, all while displaying a humility and deference sure to flatter legislators.
“Judges don’t enact laws – it’s what you do,” the 59-year-old Quebec Court of Appeal judge told the gathering of the House of Commons Justice Committee and the Senate Committee on Legal and Constitutional Affairs. “Parliament listens to what the Supreme Court and other courts have to say and, naturally enough, it’s the job of judges to apply the law that Parliament enacts.”
It was all a very civilized affair, moderated not by one of the committee chairs, but by an academic, University of Sherbrooke law dean Geneviève Cartier. MPs and senators were kept in check by Ms. Cartier, ensuring the hearing never veered into a U.S.-style inquisition – not that Canadian legislators could ever hold a candle to their American counterparts in that department, anyway. Observers came away from the hearing with little insight into how Justice Kasirer would rule in any given case, other than to favour compromise wherever possible.
How such a hearing could ever be construed as a threat to the independence of Supreme Court justices is a mystery. Yet, that is what the Canadian Bar Association (CBA) has long argued since it first opposed former prime minister Stephen Harper’s decision to have nominees to the top court submit to a grilling of sorts by MPs. Mr. Harper’s enthusiasm for the idea quickly waned, and he eventually abandoned the practice altogether after the Supreme Court itself ruled that one of his nominees, then Federal Court judge Marc Nadon, was ineligible to sit on the top bench.
Now, the CBA has come out swinging against a suggestion from Supreme Court Chief Justice Richard Wagner that appeal court nominees should face hearings similar to the one Justice Kasirer just completed. To be clear, he was not talking about confirmation hearings. MPs and senators have no authority to block a proposed nominee from sitting on any court. Judicial appointments are the prerogative of the Prime Minister, who makes his choice after a thorough vetting by an independent advisory committee led by former prime minister Kim Campbell and, in the case of judges from Quebec, a recommendation from the provincial government.
“We are opposed to any system which would expose judges to parliamentary criticism of their judgments, or cross-examination on their beliefs or preferences or judicial opinions, or any measure which would give to Canadians the mistaken impression that the judicial branch answers to the legislative branch,” CBA president Raymond Adlington told The Globe and Mail.
I’m not sure just what century Mr. Adlington is living in, but it certainly is not the current one. Since the adoption of the Canadian Charter of Rights and Freedoms in 1982, the judiciary has seen its power increase exponentially at the expense of Parliament. It is only right and natural that Canadians get a chance to see just who exactly is running the country. That includes judges.
The CBA should see hearings for appeal court nominees as a minor concession enabling Canadians to better understand and engage in our system of government. Rather than undermining the judiciary, hearings would enhance its legitimacy in the eyes of Canadians, most of whom know little about the judges who increasingly rule their lives. Since the Supreme Court is highly selective in choosing cases to hear, appeal courts often have the final say in determining how laws are applied. That makes appeal court judges very powerful.
Of course, the current hearings process, which amounts to courtesy call, could be greatly improved by giving MPs and senators more time to prepare and more leeway to seek answers relating to the judicial philosophy of nominees. We need to forget about the spectre of U.S.-style hearings – which is a vast exaggeration, anyway – and get on with it.