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Opinion New advisory panel needs to dig deep for diversity on Canada’s top court

Errol Mendes is a law professor, University of Ottawa; and president, International Commission of Jurists, Canada.

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Prime Minister Justin Trudeau is continuing the push to transform how members of Canada's key institutions are appointed, unveiling a new process to select Supreme Court justices. The move he announced Tuesday is similar to the dramatic steps to make the Senate and the appointment of senators less partisan and more transparent by establishing an independent body to propose recommendations.

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In a similar fashion, Mr. Trudeau announced that a seven-member advisory board, led by former prime minister Kim Campbell, will recommend candidates to replace retiring top court judges. This process must start immediately, given that Justice Thomas Cromwell retires on Sept. 1. While the new process will likely focus on candidates from Atlantic Canada, it will (to the surprise of many, including this writer) invite nominations from across the country. This is likely to be controversial, especially in Nova Scotia, Justice Cromwell's home province.

It is clear that the focus of the new system is to make the most important appointments in our constitutional democracy seem less than subject to the whims of prime ministers (whatever their party) and their political colleagues, a practice that Mr. Trudeau described as a "secretive backroom process." No doubt one such process that was top of mind was the 2013 proposed appointment of Justice Marc Nadon, which resulted in a Supreme Court ruling that he was not qualified to join the court as a justice from Quebec.

The new system will even allow hopeful candidates to nominate themselves, again taking this egalitarian process from the new method to appoint senators. However, it is most likely that the final Supreme Court candidate will come from the recommendations of the advisory committee.

This makes the membership and work of the advisory committee the most critical. The panel's makeup is not surprising and seems to be drawn from a similar advisory panel set up by former prime minister Paul Martin in 2004-05, which included MPs and representatives from the judiciary, law societies, provincial governments and prominent Canadians who were not lawyers. Unlike that panel, however, the one established by Mr. Trudeau will draw up the critical shortlist and it does not include MPs, thus making the process even less political than any precedent.

The majority of the committee (a retired judge, two lawyers and a legal scholar) have been nominated by independent judicial and legal organizations. The remaining three members include one non-lawyer, a former premier of the Northwest Territories and a former Conservative prime minister (Ms. Campbell). This is a clear attempt by the Liberal government to signal that the final shortlist will not be dominated by political concerns.

The most critical part of the new process is that the advisory committee will submit only three to five non-binding recommendations to the Prime Minister, who still retains the constitutional authority to appoint whomever he wants. Given his own opinion on how important it is to demolish the secretive process of the past, it is unlikely he will not choose from the provided list.

There will also be a pro-forma Q&A session in which MPs and senators will pose a restricted number of questions to the nominated justice, but most of the important work on selecting the new justice will fall to the advisory committee. There is little doubt that the most competent candidates will be selected, but there is still one area to be further examined.

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While the advisory panel has the mandate to consult widely (including with the Chief Justice of the Court, provincial representatives, and MPs and senators from all parties) it must go further in filling in what is missing – namely the lack of aboriginal and visible minority representation in the court while also achieving full gender parity on the bench.

Mr. Trudeau emphasized that the court must reflect our diverse society to bring different and valuable perspectives to the decision-making process. That is indeed what should be part of an appointment process based on merit. To achieve that, the advisory committee must perform extensive outreach activities, going into every part of our legal institutions to seek out the most competent and meritorious of such representatives of the missing diversity on the court.

Expectations of transparency and openness have been raised high by this new appointment process, but so has the expectations of a more diverse court. Because it is 2016.

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