Back in 2018, the world watched as United States Supreme Court Justice nominee Brett Kavanaugh was subjected to one those most politicized public trials in recent history. Many believed that sexual assault accuser Christine Blasey Ford was manipulated for partisan reasons to demonize Kavanaugh.
Although Kavanaugh was eventually nominated – after an FBI investigation report – all the Senate committee votes came down on party lines.
Canadians watched the trial on the news in shock and horror. At the time, while they were glued to their television sets or computer monitors, many Canadians complained loudly about the nomination process in the United States. Elite opinion in Canada breathed a sigh of relief that this “circus” was confined to the United States. One Globe and Mail editorial said Canada’s legal and political culture had “insulated” our country from the worst excesses of the U.S. process. The editorial praised our “impartial panel” that suggested nominees to our own Supreme Court.
However, many Canadians missed that around the same time our prime minister was pushing back against a nominee chosen by his own justice minister and attorney general. Minister Jody Wilson-Raybould had recommended Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench to the prime minister for his consideration after a vacancy was created when former chief justice Beverley McLachlin retired at the end of 2017.
However it became public that our prime minister had qualms about Justice Joyal because he was critical of an expansive view of the Charter of Rights and Freedoms. Fancying himself a defender of the Charter, the prime minister pushed back against the justice minister’s pick. Now, in the formal appointments process in Canada, the prime minister and the justice minister do consult on the choice, although the prime minister ultimately chooses.
Now, an interesting thing that emerged from these revelations is that the prime minister vetoed a candidate for purely ideological reasons. The prime minister prevented Joyal’s ascension because he opposed his judicial philosophy. And absent a transparent process, Canadians would never have known that.
Perhaps some readers in Canada are unaware that judges of all stripes and backgrounds bring different judicial philosophies when they approach their job. Now, in a system of judicial independence, having a judicial philosophy does not mean a partisan identity or a pre-determined preference for certain policy outcomes. It is wrong to think there is a “left wing” and “right wing” side of any court.
Our Constitution and especially our Charter of Rights – like the U.S. Bill of Rights and the U.S. Constitution – did not drop from heaven, completely clear in its language and nuance. There are various schools of thought that one brings to interpreting both documents.
In both Canada and the United States, judges interpret laws and strike down laws based on their review of fact and precedents. Often, judges can radically shift laws and make a huge impact on public policy.
What separates Canada from the U.S. is the transparency on these issues. In the U.S. system, we quickly discover judge’s judicial philosophies and approaches to their job. In Canada, it is not very transparent insofar as the proceedings are not broadcast or made public. We are asked to simply trust our appointments process. In Canada, Supreme Court nominees apply or are asked to apply to a non-partisan committee, and then after that committee sends three to five names to the prime minister.
In the American system, the president also ultimately chooses, but the Senate must “advise and consent” on that appointment. So, there is a required process of scrutiny and transparency.
Canadians may tell themselves that because our prime minister only really chooses that this is not a “political” and “partisan” system like in the United States, but that is silly and honestly, deluded.
We know from the case of Justice Joyal that the prime minister made a very ideological decision. He allowed his own judicial and political biases to enter a decision for an appointment that will go on to make a significant impact in Canadian political life.
One huge advantage of the U.S. system is it tends to remove judges who are more extreme in their philosophies on both sides from being considered. In the Canadian system, it allows any prime minister to hand pick the judges he or she wants.
There is some wisdom in shielding our appointment process from partisan politics, but we need a process here that involves much more democratic scrutiny than is occurring now and frankly, allows all Canadians to know the judicial philosophy every candidate brings to the table.
Canadians certainly can produce a made-in-Canada judicial nominations process that our proud and essential tradition of judicial independence.
It is time to open this issue in Canada. One hopes the Conservative candidates are listening.
Joseph Quesnel is a research associate for the Frontier Centre for Public Policy. www.fcpp.org
Photo by Bill Oxford on Unsplash
