The Right Person to Ask

There was an interesting op-ed in yesterday’s Globe by Adam Dodek, arguing that the mechanism which the federal government has devised for bringing greater transparency to the appointment of new Supreme Court judges, namely the interview of the new appointee by a special committee of the House of Commons, is a failure, and that instead of the judges, it is the those who appoint them who should be interviewed. This suggestion seems quite right to me, with perhaps a minor question mark.

Prof. Dodek writes that the hearings at which the newly-appointed judges are interviewed are “about nothing ― or at least nothing of legal significance.” Judges tell their life stories, make jokes, and generally appear pleasant. But they say nothing at all about their views on the law or on the job that they are about to take up. And although the hearings allow citizens to learn something (trivial) about the new members of the Supreme Court, they do not make the politicians who appoint them accountable for their decisions.

Hence prof. Dodek’s suggestion:

The wrong person is on the hot seat. It should be the justice minister, not the nominee, explaining the selection. As it stands, the process has actually led to less accountability: By putting forth the nominee to be interrogated, successive justice ministers have completely escaped having to explain their decisions.

Irwin Cotler, when he was Justice Minister, did appear before a committee of the House of Commons to explain the appointments of Justices Abella and Charron, talking about their qualifications and jurisprudence. That, says prof. Dodek, is how we should do it.

That seems about right. The small question mark I mentioned above concerns the identity of the member of the government who should explain appointments to the Supreme Court. Unlike ordinary judicial appointments, which are primarily the Justice Minister’s responsibility, appointments to the Supreme Court are (also) a direct concern of the Prime Minister. As prof. Dodek says, bringing some accountability to the process is meant to be a check on Prime Ministerial power. So why should not the Prime Minister himself appear? There may well be good reasons for this. For example, the Justice Minister is probably better placed to talk about Judges’ careers and past decisions, even if the ultimate decision to appoint them is not really his. But it’s too bad that prof. Dodek does not explain this.

Apart from that question, I think it would be a very good thing to have the government explain its decision to appoint a judge, rather than the judge appear for a meaningless getting-to-know-you interview. Of course, the Justice Minister or the Prime Minster would mostly deliver feel-good boilerplate, but that would be no loss over the current process. Any substance at all that they might provide would be an improvement. And they could be questioned more aggressively than a judge. There are good reasons why judges should be circumspect in talking about the law ― they should not give rise to any worry that their minds are made up about issues that they might have to resolve in the future. (There are bad reasons for circumspection too, such as the desire to preserve the appearance of a judiciary that does not shape the law, but they are not the only ones.) There are no such reasons for cabinet ministers explaining their decisions.

Of course, it is difficult to expect any government, and especially the present one, willingly to submit to more accountability instead of deflecting questions. But such things happen, every now and then. Let us hope that this will be one of these cases.

Tempest in a Teapot

I’m quite late to the topic, but I want to say something about the debacle that is Justice Nadon’s appointment to the Supreme Court. The government’s decision to appoint him is being attacked both legally and politically, and while the political criticism cannot undo it, the legal challenge could, in theory, and has already forced Justice Nadon to step aside from the Supreme Court’s work. Yet, ironically, the legal challenge is without merit. So are some of the political attacks ― but not others.

The line of criticism against Justice Nadon’s appointment that does have merit concerns his suitability for the job. As Jeffrey Simpson put it yesterday in the Globe and Mail, “the Supreme Court deserves better.” It is simply not clear what qualifies Justice Nadon for the Supreme Court ― it is certainly not his expertise in maritime law, which will go unused there. Actually, Justice Nadon’s most important asset in the eyes of the government which appointed him was probably his usual strong inclination to side with the government in disputes about its power. The best-known and most dramatic example of that was his dissent in Canada (Prime Minister) v. Khadr, 2009 FCA 246, [2010] 1 FCR 73, where he argued that not only had Canada not infringed Omar Khadr’s rights, but in fact that it did all it could for him ― in Justice Nadon’s view, it seems, interrogating a citizen who you know has been tortured is helping him. Presumably, the government expects Justice Nadon to take the same sensitivity with him to the Supreme Court, and help endorse its agenda, starting with the Senate reform plan the constitutionality of which the Court is due to consider next month. Appointing a judge in the expectation that he will be rubber-stamp rather than an independent thinker does, of course, deserve harsh criticism. If anything, there has not been enough of it in the last few weeks.

What there has been too much of, however, is criticism of Justice Nadon’s ability to represent Québec. The most absurd claims, voiced by members of the provincial government, is that Justice Nadon does not deserve to be appointed to one of Québec’s seats at the Supreme Court because he lives on the Ontario side of the Ottawa river. La Presse’s André Pratte demolished this line of argument in a recent editorial,  pointing out that

[i]f we follow [this] reasoning, a lawyer who practiced for 10 years in Rivière-du-Loup would be a more suitable representative for Québec than a brilliant jurist who, for example, spent a part of his career with the International Court of Justice. (Translation mine)

The seemingly more serious critique concerns Justice Nadon’s supposed lack of familiarity with Québec’s civil law ― the distinctiveness of which, after all, is the reason Québec is entitled to three judges at the Supreme Court in the first place. But this herring is of only a mildly less intense hue of scarlet than the matter of Justice Nadon’s address. It is simply not true that all the judges appointed from Québec are civil law experts. Justice Fish, for example, whom Justice Nadon was appointed to replace, was a criminal law expert, and I’m not sure he had ever dealt with civil law in his practice. He did serve on the Québec Court of Appeal for a long time prior to his appointment to the Supreme Court, dealing of course with civil law cases, but I don’t think that it ever became an area of expertise for him. The same is true of Chief Justice Lamer (whose prior judicial service was mostly on the Superior Court). Justice Beetz had taught constitutional law prior to becoming a judge, and served only briefly on the Québec Court of Appeal prior to his appointment to the Supreme Court. Yet they were all distinguished (and, in the case of Chief Justice Lamer and Justice Beetz, arguably great) judges. No judge can be an expert in, or even familiar with, all the areas of the law with which his or her court deals with. This is especially true of Supreme Court judges, who might be called on to deal with just about any case that can conceivably arise in the Canadian legal system. Judges have to learn on the job ― and it probably doesn’t matter very much whether a particular judge’s learning curve is steepest in civil, criminal, or constitutional law. It is legitimate to ask just what each judge brings to the Supreme Court’s table ― and in Justice Nadon’s case, the answer seems to be, sadly, not a whole lot. But it is not fair to criticize a new appointee for what he or she does not bring ― there are no good judges by that standard.

Right or wrong, political critiques about the wisdom of Justice Nadon’s appointment cannot undo it. A legal challenge, originally launched by a Toronto lawyer, then joined by the Québec government, and subsequently superseded ― in practice although not yet technically, so far as I know ― by the federal government’s decision to submit the issue to the Supreme Court on a reference, is another matter. The problem is that s. 6 of the Supreme Court Act provides that “[a]t least three of the judges [of the Supreme Court] shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” Justice Nadon is obviously not a judge of the Court of Appeal or the Superior Court of Québec. He was, prior to his appointment to the Federal Court, an “advocate of that province” ― but of course he no longer is one. At first glance, only current, not former, Québec lawyers can be appointed. By contrast, s. 5 of the Supreme Court Act, which applies to all judges (other than those from Québec), provides that “[a]ny person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.” This wording embraces former lawyers, and thus permits the appointment of judges from the federal courts. Since s. 6 is drafted differently, it should also be understood differently ― or so goes the argument; and at first glance, it is a persuasive one.

Even more persuasive to me, however, is the opinion of (the former Supreme Court) Justice Ian Binnie, who has concluded that, despite the literal meaning of these provisions, their correct interpretation permits the appointment to the Supreme Court of former members of the Québec bar who have subsequently served in the federal courts, such as Justice Nadon. Justice Binnie’s argument is twofold. First, he studies the history of the predecessor provisions of sections 5 and 6, and concludes that the current wording of s. 6 is only a quirk of statutory revision, which does not actually reflect Parliament’s intent to prevent the judges of federal courts (or, say, of international tribunals) from being appointed to the Supreme Court. Legislative purpose is the second element of Justice Binnies analysis. The raison d’être of sections 5 and 6, he says, is to ensure that only qualified, experienced candidates can be appointed to the Supreme Court. But reading s. 6 as preventing the appointment of former Québec lawyers who then became federal court judges not only does nothing to achieve that purpose ― it contradicts it, because it would mean that a lawyer who could be appointed to the Supreme Court straight out of practice could not be appointed after serving some years at the Federal Court of Appeal ― despite being, obviously, a more experienced and better qualified candidate. I encourage you to take a look at Justice Binnie’s analysis. It is quite brief and easily readable ― and, as I said, very persuasive.

Justice Nadon’s nomination was supposed, it seems, to be a vessel that would carry the federal government to the sweet lands of success, whatever projects of its that the Supreme Court might be called upon to validate ― starting with that about Senate reform. The vessel was not fully seaworthy ― but that wasn’t expected to matter. Yet it has been caught in a legal storm that is going to keep Justice Nadon at sea for the next several months, if not longer, and which might yet sink him, if the Supreme Court disagrees with Justice Binnie. Ironically, that storm is, in my view, nothing but a tempest in a teapot.

Yes, Minister, But…

According to the Globe and Mail, the federal Justice minister, Rob Nicholson, was recently asked about the propriety of a hypothetical (actually, rumoured) appointment of a cabinet minister to the bench. The Globe reports that

“[h]e said he did not believe that certain individuals should be ruled out as judges. ‘I’ve never gone out of my way to say that certain groups of individuals – people who have served, for instance, in political office – that they should be eliminated or sit out or anything else.'”

As a general principle, I think that’s right. There are fine lawyers serving in political office, and it would be too bad if we deprived ourselves of their services on the bench. During my clerkship at the Federal Court, I have had the privilege of working on some cases for Justice Yvon Pinard, who had been a cabinet minister and the government’s Leader in the House of Commons during Pierre Trudeau’s last cabinet, immediately prior to his appointment to the court (at the ripe old age of 36). I believe he is a fine judge. Indeed I’ve been told, though I haven’t verified this, that he is the judge of the Federal Court whose decisions are least often reversed by the Federal Court of Appeal. (This is surely not the only, maybe not even the best, benchmark by which to measure a judge’s performance, but it is worth something.) And there are many other examples of former politicians who went on to have fine, or even distinguished, judicial careers, in Canada and elsewhere. Perhaps the most famous of them was Earl Warren, governor of California, vice-presidential candidate, and later  an iconic Chief Justice of the United States.

The counter-argument, the basis for claims about the impropriety of appointing a politician to the bench, implies that such a judge would be partisan, biased, or insufficiently independent. But many lawyers are political partisans even without serving in political office. If we assume that they are capable of relinquishing partisanship upon appointment to the bench, I think we should also afford the same presumptive trust to former active politicians. Lawyers work for firms that appear before them when they become judges; or they work in government positions in which they consistently take the same side of an issue (as prosecutors for example), but we expect them to be able to serve as impartial judges. Again, there is no reason to treat politicians any differently.

That said, there is a qualification which, although valid for any lawyer aspiring to the bench, might be worth special emphasis in the case of active politicians. A lawyer’s conduct, especially his or her conduct in his or her chosen profession, can obviously be scrutinized for signs that the lawyer may not be able to live up to the standard of conduct expected of a judge. As the Canadian Judicial Council explains,

    • Judges should, at all times, exhibit and promote high standards of conduct so as to reinforce public confidence. Judges should strive to conduct themselves in a way that will sustain and contribute to public respect and confidence in their integrity, impartiality and good judgment.
    • Judges should perform their duties with diligence while treating everyone before the court with courtesy and equality, being careful to avoid stereotyping or discrimination. Judges should avoid comments, expressions, gestures or behaviour which may be interpreted as showing insensitivity or disrespect.
    • In making their decisions, judges must be and must appear to be impartial at all times. Judges must be mindful of how inappropriate comments, improper remarks or unjustified reprimands can undermine the appearance of impartiality and actively work to avoid them.

Prior to their appointment to the bench, lawyers are not held to the same standard, and some deviations from it should not be disqualifying from a judicial appointment. But a lawyer who has a history of treating opponents as enemies, of going beyond the normal bounds of partisanship, of refusing to acknowledge contrary viewpoints, or of being hateful or contemptuous is, in my view, not qualified to serve as a judge. And, arguably, politicians are especially at risk of committing these deadly sins. A politician who claims that the opponents of his policy “stand … with child pornographers” probably should not become a judge. Yes, Minister, it is your colleague Vic Toews I am talking about.