The elevation of Justice Brown to the Supreme Court has provoked an outpouring of anguish and anger about the system of judicial appointments in Canada. The critics of the current arrangements, whereby judges of superior, federal, and appellate courts are in effect appointed by the federal government, with relatively little ex-ante and no ex-post control by anyone else say that they allow ideology, partisanship, or patronage to play too large a role in the selection of judges. Some go so far as to say that these arrangements make the impartiality of the judiciary questionable. In a recent op-ed in the Globe and Mail, Joseph Arvay, Sean Hern, and Alison Latimer go further still, and call for a constitutional challenge to be brought, allowing the Supreme Court to require the creation of “an independent appointment and promotion commission.” Actually, such a ruling by the Supreme Court may well prove a disaster for the independence of the Canadian judiciary.
I can’t help but notice that there is something deeply ironic about many of the calls for reform that have been prompted by the appointment of Justice Brown and, earlier, that of Justices Huscroft and Miller to the Court of Appeal for Ontario. These appeals give pride of place to the need to free the appointments process of the influence of ideology. Why is it, then, that they follow the appointment of judges known or suspected to be ideologically out of step with the bien-pensant Canadian legal community? Why was there nothing like the same amount of criticism directed at the process by Justice Côté was appointed, which was no different from that which led to the appointment of Justice Brown?
To be sure, the Canadian judicial appointments system has long had its critics, and they are entitled to use the news cycle to advance their arguments. But they seem to me to be a minority among those who have been denouncing the appointments process in the last few weeks. For the other would-be reformers, at least, the aim seems to be not so much to rid judicial appointments of ideology, but to prevent the appointment of certain judges for the same sort of ideological reasons which they say have no role to play in this process.
Whatever their motivations, Messrs. Avray and Hern and Ms. Latimer that the processes of judicial appointment and promotion in Canada “are systemically vulnerable to political strategizing and a majoritarian disregard for the importance of diversity on the bench.” It is clear enough that the ominous-sounding “strategizing” is the appointment by of judges presumed to be ideological allies. As for “diversity,” though its meaning is never actually explained, it seems to refer to a diversity of the demographic kind ― not a diversity of opinion.
According to Messrs. Avray and Hern and Ms. Latimer, the risk of “strategizing” and the lack of diversity create a risk that the judiciary will be perceived as not independent from government. They seem especially worried by the process of promotion from a lower to a higher court, over which the government now his full discretion. Litigants, they say, “must be free of all reasonable concern that the presiding judge could be influenced by a desire to be promoted.” As I have already said, their proposed solution to these ills to set up, by judicial fiat, an independent commission that would, presumably, see to it that merit and diversity are the only factors considered in the appointment and promotion processes.
This remedy would in my view be worse for the independence of the Canadian judiciary than the disease ― if, indeed, disease there is. Messrs. Avray and Hern and Ms. Latimer claim darkly that “public confidence in the process is failing,” but offer no evidence whatever in support of that claim. Is an outburst of panicked tweets and top-eds from a certain section of the legal community indicative of falling public confidence? Colour me skeptical. It is well known that the Conservative government has kept losing more and more cases before the Supreme Court even as it appointed more and more of that court’s judges. For anyone to think that, nevertheless, the appointment process has in any way undermined the Court’s independence, they would have to be simply paranoid. Messrs. Avray and Hern and Ms. Latimer are not paranoid, so they only speak of “appearances” of a lack of independence, but even so, it is hard to avoid the impression that appearances rather support than infirm the impression that the government has no sway whatever over the judiciary.
The inspiration for their argument is, of course, the Supreme Court’s notorious opinion in the Provincial Judges Reference. The Court said there that a constitutional principle of judicial independence demanded the creation of independent commissions that would issue recommendations as to the appropriate level of judicial compensation. But it is important to keep in mind what the Court did not say, too. Notably, it did not say that a neutral, impartial, or depoliticized appointments process was a component or a requirement of judicial independence. Indeed, the Supreme Court has never said that it was. To reach such a conclusion now would be a major innovation. The Court also did not require governments and legislatures to follow the commissions’ recommendations ― only to give a rational explanation for any refusal to do so. Could a government similarly disregard the recommendations of the commission proposed by Messrs. Avray and Hern and Ms. Latimer? If not, their proposal is even more of an innovation, compared with the alleged precedent for it. If yes, then how would the process work?
This is just one of the important practical questions that the op-ed does not even begin to address. While its authors denounce the lack of clarity about “the standard on which merit is determined” in the current process, they say nothing of the standard they themselves would like to see enforced by the commission they propose. (Nor do they say who ― the Supreme Court, Parliament, or the proposed commission itself ― should devise such a standard.)That is, I suspect, because there is and can be no objective standard at all. Of course, we can agree that some credentials and character traits are required in a judge, and some desirable, while other traits must be avoided; but not all judicial virtues are subject to universal agreement, and even among those that are, there is no agreement on how to weigh the different qualities are to be weighed. Nor is there a way of guaranteeing that judges will not decide cases with an eye towards the preferences of the authority responsible for promoting them ― whether the government or a commission. We must, in this respect (as in others) rely on the judges’ good faith and ethos of independence ― which is almost certainly stronger than the alarmists would have us think.
But the proposal of Messrs. Avray and Hern and Ms. Latimer is not “merely” unworkable ― it is also horribly counterproductive. It is important to appreciate its radicalism. There has never been an independent commission of the sort they recommend. (Indeed, when amendments to the process of appointing judges to the Supreme Court were proposed as part of the Meech Lake and Charlottetown accords were considered, the issue was involving additional political actors in the process, not creating an independent bureaucracy to direct it.) Implicit in the argument that such a commission is required to uphold the appearance of judicial independence is, then, the striking proposition that the Canadian judiciary has never in its history appeared quite independent of the executive that appointed it. Not when it stopped Pierre Trudeau’s attempts at unilateral Senate Reform or Patriation; nor when it struck down the Lord’s Day act or a variety of criminal law provisions insufficiently respectful of the rights of suspects and the accused; nor yet more recently, as it delivered rebuke after rebuke to the present government. Nobody actually believes that, of course. A judicial decision that ratifies this principle would be a substantial constitutional amendment. (Not the first such amendment, to be sure, as Grégoire Webber has cogently demonstrated.)
Would such an amendment be a good thing? Admittedly, I am skeptical of its substantive merits, as I actually believe that ideological diversity on the bench, which is no less, and probably more, important than the demographic kind, is better served by government control over judicial appointments than by a commission staffed, in all likelihood, by people committed to the prevailing orthodoxy. But even if you disagree with me about that, you ought to be concerned about the introduction of such an amendment by judicial fiat. The Supreme Court’s opinion in the Provincial Judges Reference has been the subject of withering criticism (for example, by Jean Leclair) ― and yet its practical impact, in terms of impairing the powers of governments, was arguably a good deal less serious than that of a ruling requiring appointments commissions would be. The backlash against such a ruling would almost certainly be stronger still. It was bad enough when judges seemed to be protecting their colleagues against the impact of budget cuts to which all public servants were subject. It will be worse if they seem to be insulating the courts from all outside influences, including those that have been regarded as legitimate and indeed desirable for 150 years. Those who are concerned about appearances out to be distressed by the prospect a judicial decision coming across as a self-interested constitutional coup.
Messrs. Avray and Hern and Ms. Latimer probably think that they act as the friends of the Canadian judiciary. But they do not. A friend does not expose you to a temptation in which he knows you to indulge more often than is good for you, as Canadian courts do with re-writing constitutional law. A friend does not urge to stake your reputation on an enterprise whose benefits are uncertain at best, as decision requiring appointments commissions would be. Most importantly, a friend does not make disparaging insinuations about you in order to make you cave to his requests, as Messrs. Avray and Hern and Ms. Latimer do when they claim, without any basis, that the courts are already losing their legitimacy.