At the height of the SNC-Lavalin scandal in March, CTV News cited an anonymous source who said the relationship between former Attorney General Jody Wilson-Raybould and Prime Minister Justin Trudeau soured after she proposed Mantioba Justice Glenn Joyal to replace Chief Justice Beverley McLachlin on the Supreme Court of Canada. According to the source, Trudeau was disturbed by Wilson-Raybould’s pick because Joyal had been too critical of how the court was applying the Charter of Rights and Freedoms. He picked Sheilah Martin instead.
In a panel discussion on September 25th – hosted by the Osgoode Hall chapter of the Runnymede Society – University of Toronto emeritus professor Peter Russell praised Trudeau for making the nomination process more transparent. “Our choice in liberal democracies is between one where the politics (are) open, acknowledged and possess some degree of balance … or one where the political power is hidden, unacknowledged and unilateral,” Russell said. “In Canada, we’re stumbling towards the first choice.”
With respect, the fact that Canadians only learned of Joyal’s rejection through a media leak is a reminder that the process continues to hide the politics going on behind the scenes. Trudeau made his pick with a Liberal-approved approach to Charter interpretation in mind. That is his prerogative, but Canadians ought to know that’s why he made the choice he made in case they would prefer to vote for a potential prime minister who is more likely to appoint judges like Joyal—judges who would prefer that the courts take a more cautious approach to interpreting rights. The only real way for Canadians to get a clear idea of the political thinking behind a given prime minister’s appointments is to see who they have rejected. The nominations process will only be transparent when Canadians get to see who applied, who was interviewed, who was shortlisted, and what they told the search committee about their approach to charter interpretation.
To understand why I believe Trudeau’s process isn’t any more transparent, consider the make-up of the “independent and non-partisan Advisory Boards” that he has tasked with interviewing suitable candidates and recommending three to five options. The board first assembled in 2016 to help Trudeau fill the seat of retiring Justice Thomas Cromwell. Five were filled with people who have at least some left-wing viewpoints. The appointees included Liberal donor and former Northwest Territories premier Stephen Kakfwi; Winnipeg lawyer and Liberal donor Jeffrey Hirsch; Toronto lawyer and long-time New Democrat Susan Ursel; and Lili-Anna Pereša, a Montreal lawyer who worked for left-wing charities like Oxfam and Amnesty International. It was chaired by former prime minister Kim Campbell, a Progressive Conservative with a serious bout of Trudeaumania. All of these people are respected and capable of making good recommendations, but the composition of the board seemed tailor-made to produce a shortlist of justices who take the Liberal approach to Charter interpretation. We can only know for certain if we have the chance to see the candidates who were rejected by the Advisory Boards.
In addition, the process isn’t transparent enough to allow us to assess why we aren’t seeing any ethnic diversity among the appointees. The 2016 Advisory Board received 31 applications, interviewed ten candidates and recommended five to the prime minister. They noted that twelve were “ethnically/culturally” diverse, three were visible minorities and four were Indigenous. Again, this may look like transparency but we don’t know what truly matters, nor why none of these applicants were chosen by Trudeau. In order to assess whether those applicants were passed over unfairly by Trudeau or whether they were simply not as qualified, we need to know their names.
True transparency would also involve publishing written submissions on how the judges would have ruled on important Charter cases. For example, would they have agreed with the court’s 2004 decision in Haida Nation v British Columbia that there is a duty to consult about development on Indigenous traditional territory? The Frontier Centre for Public Policy called that decision “judicial activism” that “proved to be a job-eating monster.” There’s no doubt the committee would have asked these types of questions, likely in the form of written submissions, so why can’t we see how the judges would have addressed these cases?
Some might suggest that publishing the names risks further politicizing the process because it will undoubtedly lead to more criticism of the prime minister’s choices. But as Russell pointed out during the Runnymede panel discussion, appointments made by the executive are inevitably political; the only real question is how much of the political calculations the public gets to see.
It’s time for us to open the curtains and let the sunlight pour in. Our democracy will be better off if we understand why certain judges are being appointed and others are not. It is the only way as Canadian citizens to hold our leaders accountable if we believe they are making the wrong choices.