February 24, 2006
The bar, not politicians, should be hosting the Meet the Judge show
By BRIAN A. TABOR , Q.C.
Law school dean Patrick Monahan is right in arguing that significant improvements have been made to the process of appointing judges to the Supreme Court of Canada. But as Mr. Monahan concludes in his recent column in these pages, there is still a way to go, a need for safeguards to ensure the process doesn't go awry.
Canadians certainly deserve to know more about individuals who are to be appointed to the Supreme Court. But the Canadian Bar Association is concerned by the concept of a second "job interview" by parliamentarians.
While a televised public session with the Prime Minister's choice may seem an efficient way of introducing the nominee to Canadians, there is an inherent threat to judicial independence. How do we assure Canadians of that independence when they see nominees on television "under the lights" answering to politicians?
Mr. Monahan suggests it is a "structured job interview." That's a bit of a stretch. This interview occurs after the offer has been made and accepted. The interviewers have no power over the final decision; they can merely deliberate in the period between the questioning, and the appointment or hiring. To cast this encounter as a job interview is misleading.
Let's call it what it really is: an introduction. The highest purpose of this second "interview" is to provide Canadians with an opportunity to see their new Supreme Court justice in action. To get to know him or her. Not a grilling. Not a hearing. Not a second-guessing.
Rather . . . an introduction. Who is this person? What does he or she think about the job they are taking on? What qualifications do they think a Supreme Court justice should have? What qualities should a Supreme Court justice demonstrate? What experience should they bring to the job?
Prime Minister Stephen Harper recognizes that Canadians want to better know those who sit on our highest court. It is incumbent on the government to provide that opportunity. But even if the parliamentarians who will interview the candidate ask only the fairest questions, the very encounter between politicians and the nominee can raise questions about the independence of our judges. And so it is also incumbent on the government to protect the basic values of our justice system.
We should not put the independence of the judiciary at risk by mixing the political with the judicial. There is no need to create an appearance that judges are beholden to those members of the very government they will undoubtedly be forced to judge. I submit there is a better, safer approach to introduce a Supreme Court nominee to Canadians, without creating doubt as to the independence and impartiality of our judges.
After the Prime Minister has appointed the new justice to the court, I would propose a televised, public introduction of the jurist, under the aegis of the Canadian Bar Association. This event would replace the parliamentary hearing currently being pursued by the government.
The session would involve an interview of the new justice by a leading Canadian journalist, using questions submitted by MPs, the public, the media and other legal experts. The interview questions would be subject to a protocol developed along the lines suggested by Mr. Monahan. Representatives of the government, the judiciary, the legal community and the media would participate.
The protocol would outline the kind of questions that could appropriately be asked of a new justice — questions that would introduce the person while maintaining the professionalism and integrity of the position, the court and the justice system.
This approach would accomplish the objectives of the government by bringing the new justice closer to the people, while keeping the government and the judiciary properly separate. Our proposal for a nationally televised introduction of the new Supreme Court of Canada justice would not only succeed in helping Canadians know their judges, but it would protect the independence of the judiciary so essential to Canadian democracy.
Brian A. Tabor, Q.C., is president of the Canadian Bar Association.
