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Opinion Why secret Supreme Court appointments are likely here to stay

Adam Dodek is one of the founders of the University of Ottawa's Public Law Group and the author of the book The Canadian Constitution. He is currently a Visiting Professor at the Halbert Center for Canadian Studies at the Hebrew University in Jerusalem.

Having championed reform of the Supreme Court appointments process for more than a decade, the Conservatives are now desperately trying to stuff the genies of transparency and accountability back into the bottle. They are unlikely to succeed precisely because they have been so successful in making these twin principles an article of faith in Canadian politics.

The Reform Party put the Supreme Court appointments process on the democratic reform agenda. Their successor, the Conservative Party, fervently embraced it. But now, the Conservative Government appears intent on convincing Canadians that everything it preached to them for the last 25 years is bunk.

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In 2004, Liberal justice minister Irwin Cotler started to reform the Supreme Court appointments process. He became the first – and, sadly, the last – justice minister to appear before a parliamentary committee to explain and justify the choice of particular Supreme Court nominees (Justices Abella and Charron). The Conservative Party criticized the Liberal government for not going far enough.

When it came to power in 2006, the Conservative Government stood by its previous position. It took the process further and had Justice Marshall Rothstein appear before a committee of parliamentarians for questioning. Not all welcomed that process, but some hailed it. One politician claimed that it marked "an historic change in how we appoint judges in this country. It brought unprecedented openness and accountability to the process. The hearings allowed Canadians to get to know Justice Rothstein through their members of Parliament in a way that was not previously possible." That speaker was Prime Minister Stephen Harper. He repeated the process in 2011, 2012 and 2013, but since the botched appointment of Justice Marc Nadon – due to the government's own ineptitude – the Prime Minister has twice dispensed with public hearings for Supreme Court appointments.

Once may be an exception, but twice starts to look like a new practice. Indeed, statements by the Prime Minister in appointing Justice Suzanne Côté indicate that the appointment process – with no advisory committee and no public hearing – was no aberration. It is to be the new normal.

Before the Côté appointment, the Harper government had been laying the groundwork for its desired return to executive fiat. It complained about leaks in the Nadon process. This argument hardly justifies killing the entire process. In fact, it actually supports more transparency in the appointments process, not less.

Being on the shortlist for a Supreme Court appointment is a badge of honour, not of shame. Other countries publish the list of those under consideration for high court appointments in order to invite public comment. Had the Harper government done this in the case of the Nadon appointment, it might have been spared the political embarrassment of a failed appointment.

What really appears to have irked the government is its loss of control over the process. When faced with the choice between commitment to its asserted principles of transparency and accountability and maintaining absolute control over the process, the Harper Government has chosen the latter. The Conservative Party of 2006 (and before) would be the strongest critics of the Conservative government's actions in 2014.

Adam Dodek is one of the founders of the University of Ottawa's Public Law Group and the author of the book The Canadian Constitution. He is currently a Visiting Professor at the Halbert Center for Canadian Studies at the Hebrew University in Jerusalem.

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