In Praise of Transparency
By Bernard Amyot
President of the Canadian Bar Association
May 4, 2008
Whenever there is a vacancy on the Supreme Court of Canada, legal, media and political circles start buzzing with speculation about the next appointment to the country’s highest bench. In this respect the replacement of retiring Justice Michel Bastarache has proven no different.
What is evolving, however, is the selection process. Attention has turned to how Supreme Court judges are chosen as much as to who is selected for the job. The latest change was with the appointment two years ago of Justice Marshall Rothstein — the first to be reviewed at a parliamentary hearing.
The Canadian Bar Association believes that Supreme Court judges should be appointed in an open and transparent process that does not compromise the selection of highly qualified individuals. As Canadians, we want the best and brightest appointed to sit on the bench, those who we can comfortably entrust as the final arbiters interpreting our laws. We need to be confident that those individuals will listen and be completely impartial in reaching their decisions.
For years, the CBA has recommended that advisory committees assess potential candidates. We applauded the government for adopting this process for the most recent Supreme Court appointments. These committees, consisting of members of Parliament, the bench, the bar and the public, assessed the candidates on fair, public criteria and made recommendations to the Prime Minister.
The CBA agrees with the Prime Minister's view that Canadians deserve to know more about the individuals who are appointed to the Supreme Court of Canada.
Admittedly, we watched with some apprehension the Parliamentary hearing of Justice Rothstein. Fortunately, as Chief Justice Beverley McLachlin noted afterwards, the committee "avoided partisan questioning of the candidate." Speaking of her colleagues on the Court, she added: "At the end of the day, those who watched the hearing were united in their belief that it provided Canadians with an opportunity to get to know more about the respective roles and obligations of the government and the judiciary."
The process for appointing Justice Rothstein opened a window on the Supreme Court for Canadians. We remain cautious, however, about future Parliamentary reviews. Our concern is that the partisan nature of Parliament lends itself to the demonstration of political agendas. Questions about personal opinions or prior writings can taint the judiciary by giving Canadians the wrong impression - that courts pre-judge cases based on personal, partisan views, and that judges are beholden to political parties or the government that appointed them. Canadians must be secure in the knowledge that judges decide cases after they hear the arguments presented to them, with impartiality and integrity and applying the relevant law.
The purpose of any nomination hearing should be to give Canadians an opportunity to get acquainted with their new Supreme Court Justice – an introduction. Not a grilling. Not second-guessing. The event must be conducted respectfully, professionally and with civility.
The questions should be subject to a publicly available protocol that would outline the kind of questions appropriately asked of a new Justice - questions presenting the person while maintaining the professionalism and integrity of the position, the Court and the justice system.
For example, questions about the candidate’s approach to judging, their language abilities or their knowledge of the common law, civil law and Indigenous legal systems would be appropriate. On the other hand, criticism of past judgments, questions on issues that might come before the court, on personal beliefs or preferences that intrude on the candidate’s privacy or dignity would be inappropriate.
It is imperative that partisanship be left out of the process and the right balance of transparency and openness results in an excellent appointment.
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