Vacancies on the Supreme Court of Canada bench — comprised of eight puisne judges and the chief justice — are filled according to the will of the prime minister. Although there has been significant debate about the process and criteria for selecting Supreme Court judges, little if any debate has revolved around the selection of the chief justice in particular.
This issue deserves more and separate attention because of the distinct considerations involved in filling the unique and important position of chief justice.
In addition to the judicial duties of all Supreme Court judges, the chief justice has numerous leadership responsibilities. Most significantly, the chief oversees the work of the court by scheduling and assigning judges to cases and presiding over most hearings. The chief also has roles outside the court such as chairperson of various committees and substitute governor general.
The case for election of the chief justice by the SCC bench
The separation of powers assumes that each branch of government possesses its own institutional competencies. Accordingly, the selection of the chief justice may be a job suited for the judiciary rather than the executive.
Supreme Court judges have two important advantages over the prime minister, as well as federal or provincial legislatures and the general public, in deciding who among them should assume the role of chief: They know precisely what skills and qualities a chief justice must possess; and they know which justice possesses them to the highest degree.
The leadership competencies required of a chief justice include both hard administrative skills and soft interpersonal skills. No one can assess whose skillset best matches the duties of the chief justice with the same precision as the other judges in that court who are directly affected by the chief’s administrative decisions and may have experience carrying out such decisions themselves.
The judges also know, based in large part on private conversations and backroom meetings, who has the personality traits and intra-court relationships necessary to effectively serve as their leader. Unlike court observers who speculate about the nature of the relationships between judges and court employees who may be privy to certain inside information, only the judges themselves have access to the full picture.
In contrast, it is impossible for the prime minister to appoint a chief justice based on such an accurate skillset assessment even if he wanted to (and there is no indication that he does).
The PM is not an expert in the work of the court, especially not the administrative duties of the chief; nor can he possibly understand the complex ways in which judges’ personalities mesh and conflict. Transferring the job of selecting the chief justice to the court would not only overcome these disadvantages, but also ensure the bench’s confidence in its leader, which can only benefit the functioning of the court.
Potential obstacles and complications
Such a change to the method of selecting the chief justice is not without challenges. For instance, it is possible that judges would vote for a chief based on ideological similarity rather than the skillset described above. However, judges are presumably less politically motivated than the prime minister and have a strong interest in choosing a chief with leadership competencies to make their jobs easier.
Allowing the Supreme Court bench to elect its own chief would likely require an amendment to the Supreme Court Act. It also raises a consistency issue since the chief justices of all other Canadian superior courts are appointed by the prime minister.
In addition, the change raises some uncertainty as to whether the chief justice would continue to hold other appointment-based positions, such as chairperson of various committees, Privy Council member, and substitute governor general.
Many procedural questions would also require delineation: Must candidates be nominated? Is self-nomination permitted? May a judge vote for him or herself? Is the outgoing chief permitted to vote? What happens in the case of a tie?
Nonetheless, election of the chief justice by the Supreme Court bench is worth considering on the basis that the chief of Canada’s highest court should be the judge best able to provide the leadership the court needs to carry out its adjudicatory functions effectively.
Michele Krech is a recent graduate of the University of Ottawa’s joint JD/MA program, during which she participated in Professor Adam Dodek’s Supreme Court seminar. She is currently completing a clerkship and will commence her LLM in international law in the fall.