Thursday, November 10, 2005

The story of Harriet Miers' withdrawal of her nomination to the U.S. Supreme Court contains important lessons not just for Americans, but for our country as well. It is a poignant reminder of the value of a transparent and democratic appointments process, and of the impressive results that can result from giving interest groups ample opportunities to make their views known.

The Canadian appointments system is the exact opposite, continuing to be shrouded in secrecy and treating Canadians as dependents who need the superior guidance of an all-wise federal government. It is ironic this should be so, since the Supreme Court of Canada Act, which governs appointments to the court, is not entrenched in the Canadian constitution -- unlike in the United States. It therefore gives the federal government more -- not fewer -- opportunities to introduce meaningful transparency and accountability to the appointments process. Regrettably, Paul Martin has failed to do so despite his commitments made before he became prime minister. What he has instead given Canadians is the illusion of meaningful reform without any substance.

In May, 2004, the House of Commons Justice Committee issued its recommendations for reforming the system of appointments to the Supreme Court. Each of the political parties represented on the committee presented its own report, with varying recommendations; nevertheless, all the parties agreed on the need for a strong advisory committee that would be responsible for compiling a short list of candidates from which the actual appointment would be made by the federal government.

In April of this year, Justice Minister Irwin Cotler published the government's response. It fell far short even of the Justice committee's generally modest proposals. The new procedure, which Cotler is in the process of implementing as the government fills the vacancy on the Supreme Court left by the impending retirement of Justice John Major, involves the establishment of a committee whose nine members (already selected from a variety of sources) include a nominee from each of the political parties in the House of Commons.

That sounds like a great improvement over the old system of appointments. The reality is that the committee is a toothless tiger. It is not free to compile its own list of nominees; instead, the Justice Minister has presented it with a list of six names from which it is asked to choose three. The Prime Minister will then make the actual appointment by choosing one of the three.

Cotler's rationale for spoonfeeding the committee is that it lacks the resources and personnel to compile its own list of candidates. The short answer to this is that the gap could easily be remedied if the federal government were serious about arming the committee with meaningful powers. If need be, outside authorities could be consulted.

There is an existing precedent in this regard: The judicial compensation commission, appointed every three years under the Supreme Court of Canada Act to review judicial salaries and pensions arrangements, is supplied with generous professional help. Why could the same not be done for the Supreme Court advisory appointments committee?
Equally troubling is that the advisory committee is not free to add to the list of six names supplied by the Justice Minister or even to interview the six candidates on his list. It is also not permitted, apparently, to collect its own information about the candidates, but is confined to the dossiers provided by the government. Similarly, the public is not entitled to know the identity of the three names on the short list presented by the committee to the federal government. In short, everything is done in a stultifying climate of secrecy seemingly aimed at producing a pre-ordained result.

Even with these moderate improvements, our selection procedure remains a national and international embarrassment. It does it not remotely measure up to the transparency of the U.S. system; it compares equally unfavourably with the system of appointments to the new Supreme Court of the United Kingdom. Under that system, the selection committee -- not the British government -- selects the candidates and in effect makes the actual appointments.

It is a puzzle how the members of the Canadian advisory committee could have agreed to serve under the demeaning conditions established by the federal government. More to the point, it shows how much further we need to travel in Canada to persuade even Members of Parliament of the meaning of a transparent and accountable system of appointments to the Supreme Court.

Jacob Ziegel is professor of law emeritus at the University of Toronto.
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