The Law Society of British Columbia has submitted a report to federal Justice Minister Jody Wilson-Raybould outlining a series of recommended principles for the appointment of justices to the Supreme Court of Canada.
The report entitled “Principles for the Appointment of Justices to the Supreme Court of Canada” was released yesterday and written by a subcommittee of the Rule of Law and Lawyer Independence Advisory Committee including Craig Ferris, a partner at Lawson Lundell LLP, Jeff Campbell, a partner at Peck and Company, and Jon Festinger of Festinger Law & Strategy LLP.
The report was approved by benchers at their July 8 meeting and sets out four principles the law society views as essential to the process of appointing justices to the Supreme Court: transparency; judicial independence; merit and diversity; and public participation.
“When you look at the issues that really affect the everyday life of Canadians, such as right to die, and the people making those decisions, we really should have some transparency into how they came to be in that position to make those decisions for us,” says LSBC bencher Ferris, who chaired the committee.
In the past, under former Liberal minister of justice and attorney general Irwin Cotler, there was an appointment process that involved a parliamentary hearing and nominees appeared in person at the hearing, says Ferris. But the hearing process was abandoned for the two most recent appointments to the SCC.
Cotler himself has also recently called for changes to the selection process.
Under the principle of merit and diversity, the report appears to try and get at past criticisms that appointments were politically motivated.
“The primary criterion for appointments to the Court should be merit. In order to maintain confidence in the institution of the Court, the appointment process should avoid any appearance of partiality or partisanship. Politicizing the appointment process threatens the legitimacy of the Court and the principle of judicial independence.”
Ferris says there should be a greater examination of the process to establish some precedent so governments can be held accountable to following a set process.
In March, it was announced that Justice Thomas Cromwell will resign from the Supreme Court of Canada effective Sept. 1. The current government has stated its intention to review and renew the process for judicial appointments to the courts.
In the past, the Federation of Law Societies has provided input on the issue. In 2004, the Federation sent a submission to the federal government recommending principles for the appointment process. In 2008, the Federation wrote to the minister of justice with recommendations.
“That’s one of the reasons we decided to take up the torch about the issue again,” says Ferris. “We thought the Cromwell resignation meant that this was going to move rather quickly and we thought if we want to get into the discussion and be part of the debate we need to act quicker rather than later as opposed to force it on to the federation’s agenda, which can take some time.”
In a statement, the BCLC stated: “The Supreme Court of Canada is a vital component of Canada’s constitutional democracy. It plays a key role in maintaining the rule of law and is a cornerstone of the legal fabric of Canada. Accordingly, the process by which Supreme Court Justices are appointed directly impacts the public interest.”
The current process by which candidates are evaluated and selected is largely unknown. For a number of recent appointments to the court, the appointment process changed from one appointment to the next.
The law society’s position is that incorporating the four principles identified will enhance public confidence in the court.
“I do think there is an opportunity with the new federal government — they’ve talked about reviewing the process of appointing judges generally and that should include the Supreme Court of Canada judges, and I’m hoping that this acts to spur on that debate and we get to be part of that discussion,” says Ferris.