Lori Turnbull is the director of the School of Public Administration at Dalhousie University and deputy editor of Canadian Government Executive magazine.
To best understand the news that Prime Minister Justin Trudeau has started the process to seek a replacement for retiring Supreme Court Justice Clément Gascon – and the controversy, in its wake, over a report that the Liberals use a party database known as “Liberalist” to assess vetted applicants for Supreme Court positions and find out whether an applicant had ever been a Liberal member, supporter or donor – we need to dig into how the judiciary sausage is made.
Appointments to the Supreme Court of Canada, the highest court in our land, are Governor in Council appointments, which means that the Governor-General makes the selection based on the advice of the Privy Council, which, in the case of Supreme Court appointments, is effectively the advice of the Prime Minister. This is a long way of saying it’s really the Prime Minister’s decision, with a few important caveats along the way.
One such caveat is a new step introduced by Mr. Trudeau’s government, which will be used for the first time in identifying Justice Gascon’s successor. An independent advisory board, chaired by former prime minister and justice minister Kim Campbell, will provide the Prime Minister with a short list of potential candidates for his consideration. In addition to the criteria for appointments laid out in statute, the advisory board will take into account such things as individuals’ personal qualities, analytical skills, experiences and ability to resolve legal problems. The board is also expected to consider how judges complement one another on the bench, and the extent to which Supreme Court justices, as a collective, are representative of Canada’s diversity and have expertise in relevant subject matters.
Any individual who wishes to be considered for Supreme Court appointments must submit an application. The process is much like the one in place for appointing new senators, which the Liberal government also changed to make less partisan and more open, transparent, merit-based and reflective of Canada’s diversity. The changes to appointments for senators and Supreme Court justices are in connection with that promise.
A PMO spokesperson has explained that using the Liberalist is a normal and appropriate part of the appointments process, so as to be aware of the political history of any potential judge and to be prepared to answer any questions that could arise in that context. But on the face of it, there seems a contradiction between the pledge for a more independent appointments process on one hand and what has been reported on the other – the use of the party database for vetting.
That contradiction doesn’t really exist.
Critics say this is evidence of outright partisanship in judicial appointments, a claim conjuring up images of PMO staff scouring the Liberalist, with the goal of appointing judges who are sympathetic to the Liberal agenda (or, worse, to reward loyalists and big donors with one of the most sought-after jobs in the country). Judicial appointments motivated by partisan politics would undermine the integrity of the legal system and its constitutional independence from the political branch, and destroy the trust that Canadians have historically bestowed upon the Supreme Court, at a time when deference toward other powerful institutions has steadily declined.
Indeed, public awareness of the fact that PMO staff are involved in vetting applicants to begin with – let alone with the Liberalist as a guide – is difficult to reconcile with what we always tell ourselves about the sanctity of judicial independence. We pride ourselves on the constitutional space between the judicial and political branches of government. We rely on the former to act as a check on the power of the latter.
But the fact that the Prime Minister makes the final decision on appointments opens the door to some degree of politicization anyway. There is an important difference between partisanship and politics that is relevant to this discussion: The former has absolutely no business in judicial appointments; the latter is inevitable. The prioritization of some criteria over others in selecting judges, as well as the emphasis on the importance of diversity on the court, are political priorities that this Prime Minister owns as defining parts of his public identity. His decision to set up an independent advisory board is a political one, too, and it’s one that won’t necessarily be repeated by future prime ministers.
This whole thing would be easier if we were to adopt a conclave-style approach to judicial appointments – a secret meeting, a puff of white smoke and we’ve got a new judge. But modern standards of democracy would not (and should not) tolerate such a lack of transparency. With increased transparency comes uncomfortable proximity to the sausage-making process – but it’s only fair that when we assess what’s inside the casing, we need to understand the full context of how the meat was sourced in the first place.