Tories set nomination process for new SCC judge
Published Thursday, May 29, 2008 8:13AM EDT
OTTAWA - MPs from all parties will have a role in deciding the next appointment to the Supreme Court of Canada, but Prime Minister Stephen Harper will still get the final say under a nomination process adopted by the Conservative government.
It also appears that lawyers, judges and members of the general public, while also being included in the process, could have more limited input than they did last time a seat came open on the high court.
Justice Minister Rob Nicholson announced Wednesday that he will start things rolling by compiling a preliminary list of candidates to fill the vacancy left by Justice Michel Bastarache, who announced his retirement in April.
Bastarache came from New Brunswick, and by tradition will be replaced by someone from Atlantic Canada, though not necessarily from his home province.
Nicholson said he'll draw up his list in consultation with the four provincial attorneys general in the Atlantic region, and will also speak with "leading members of the legal community."
He'll also be accepting suggestions from anyone else who wants to put a name forward - but only through e-mails to his department, with no assurance of how seriously they'll be considered.
Once he has an initial list in hand, Nicholson will give the names - it's unclear exactly how many - to a committee composed of five MPs, including two Conservatives and one each from the Liberals, Bloc Quebecois and NDP.
They will narrow the candidates to a short list of three, with Harper to make the final selection in keeping with his constitutional authority to name members of the court.
The last judge appointed to the Supreme Court, Marshall Rothstein of Manitoba, went through a similar vetting process. That was a marked departure from decades of tradition in which prime ministers held a free hand to choose anyone they wanted.
But the review committee that considered Rothstein included not just MPs, but also members of provincial law societies, a retired judge and a lay person unconnected with the legal profession.
New Democrat justice critic Joe Comartin, who sat on that panel, expressed concern Wednesday that the new committee will be made up entirely of politicians.
"Those other individuals provided some very valuable resources," said Comartin. "They brought different qualities and skills than we had among the MPs."
The committee work last time took place under the Liberal regime of Paul Martin, but his government fell before he could make a final selection. When Harper assumed office in early 2006, he picked Rothstein from the three-person short list he inherited.
The Tories also added another twist to the vetting process that had gone on behind closed doors. They had Rothstein appear in public to field questions from a House of Commons committee before taking office.
Unlike judicial confirmation hearings in the United States, however, the Canadian panel had no veto power, and members were severely limited in the kind of questions they could ask.
A similar public hearing will be held for whoever replaces Bastarache, but again there will be no veto power.
The hearing will merely serve to "enhance the transparency of the appointment process and promote public understanding," Nicholson said in a written statement.
It's considered unlikely the new judge will come from New Brunswick, and few expect Prince Edward Island to get serious consideration.
Many in the legal community consider the front-runner to be Justice Thomas Cromwell of the Nova Scotia Court of Appeal. He is bilingual, highly regarded for the quality of his judgments and served as an aide to Antonio Lamer when he was chief justice of the Supreme Court.
Nova Scotia Chief Justice Michael MacDonald and Justice Jamie Saunders of the provincial appeal court are also mentioned as potential candidates.
But Newfoundland, which has never had a member on the Supreme Court since joining Confederation, is lobbying hard for a seat.
Jerome Kennedy, the provincial attorney general, has even taken the unusual step of speculating publicly about potential candidates.
They include Chief Justice Derek Green of the province's senior trial court - also considered by others to be a leading possibility - and Justices Margaret Cameron and Leo Barry of the appeal court.
Cameron is currently busy, however, with a public inquiry into health care and Barry, a former provincial Liberal leader, seems unlikely to find political favour with the Harper government.
Harper is also under pressure to ensure that Bastarache, long known as champion of minority language rights, is replaced by someone who is bilingual.
Rothstein has come under fire from some critics for his virtually non-existent French, a considerable handicap on a court that hears cases in both languages and also operates bilingually in much of its behind-the-scenes work.