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Opinion Opaque and secretive, the Supreme Court appointment process must change

Adam Dodek is a co-founder of the University of Ottawa's Public Law Group and the author of a recently completed democratic audit of reforms to the Supreme Court selection process. He is also the author of the recently published The Canadian Constitution.

The Supreme Court appointment process is broken. How to fix it is the challenge.

On Friday, two stories brought the appointment process back in the news. In the morning, the Court announced that Justice Louis Lebel would be retiring on Nov. 30, on his 75th birthday. Since Supreme Court judges must retire at age 75, this announcement was not a surprise. The second story, however, was very much a shocker, and blew the lid off the Harper government's secretive appointment process with detailed revelations about who was on the so-called long list of six names submitted by the Minister of Justice to the Supreme Court selection panel, which sliced the list in half to three from which the Prime Minister made the ill-fated appointment of Justice Marc Nadon.

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The Prime Minister responded to the news of Justice Lebel's retirement as he had to the announcement of every other supreme retirement by graciously acknowledging the career and contributions of Justice Lebel. However, the Prime Minister's response was uncharacteristic in not announcing the process for replacing Justice Lebel. Perhaps this is not surprising given that the government has not yet announced how it plans to fill the Nadon vacancy.

It was clear before The Globe's revelations that the appointment process was broken. However, the more we discover about the botched appointment of Justice Nadon, the more questions are raised about the whole process.

In reforming the process for selecting Supreme Court justices, the Harper government – and its Liberal predecessor – promised Canadians transparency and accountability. Instead, we have a closed and secretive process that actually shields those who exercise power in the appointment process from having to account for it.

On Wednesday, the University of Ottawa's Public Law Group will host a public forum on the Nadon appointment. We will attempt to search for answers to the many questions that have arisen about the government's selection of Justice Nadon.

It will be a challenge because the government has refused to explain all but the bare bones of the process. To date, the Harper government has refused to provide answers to the following questions, among others: What were the qualifications upon which candidates were selected and evaluated? How did the Minister of Justice choose the so-called "long list" of candidates to be considered? How many candidates were on this so-called "long list"? (The Globe reported that there were six). Why were four judges of the Federal Court placed on this list? Is there some problem with the judges of the Quebec Court of Appeal?

And then – to invoke Donald Rumsfeld – we have some known unknowns about the Supreme Court Selection Panel. How did it operate? What was its mandate from the Minister of Justice? How did they decide on the recommendations for the shortlist? Consensus? Unanimity? Majority vote?

These are just some of the unanswered questions about a selection process which the Minister of Justice and the Prime Minister have unjustifiably characterized as being "transparent".

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In fact, the selection process is actually the dictionary opposite of "transparent": it is opaque or secretive.

The appointment process also failed to produce accountability. Neither the Minister of Justice nor the Prime Minister provided any adequate explanation of why they selected Justice Nadon for this important post. This was both unfair to Justice Nadon as well as to the Canadian people. The accountability failure compounds the transparency failure: in the absence of identifying the criteria for selection, it becomes impossible to explain how a candidate meets those unknown criteria.

There is a way to actual deliver the promised transparency and accountability.

To begin, the government should publish a detailed protocol, a Guide to Appointment of Supreme Court Justices which would set out the qualifications, consultation to be followed, procedure for evaluation, etc.

A revamped advisory committee would then operate in a more open and transparent fashion and produce a report on their work. This committee should not be confined to the list of names given to them by the Minister of Justice. They should be able to consider any candidate that meets the published criteria for appointment.

The public hearings with nominees should continue, but only if the Minister of Justice also appears to answer questions about the process and about why the particular nominee was selected.

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With these reforms, the government could then rightly claim transparency and accountability. Until such time, the Supreme Court appointment process will continue to be an exercise in secrecy and non-accountability.

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