Ottawa overhauls process for selecting SC justices

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The Liberal government has confirmed it will overhaul the way Canada picks a Supreme Court justice, opening up a process that has been criticized as partisan and unaccountable. Prime Minister Justin Trudeau will announce Tuesday that former prime minister Kim Campbell has been selected to chair a new seven-member advisory board that will be tasked with recommending candidates to replace Supreme Court Justice Thomas Cromwell, who is due to retire on Sept. 1.

The Globe and Mail revealed last month that the government was planning to change the selection process and would position the move as an attempt to make it less elitist. The Globe also reported that the government was expected to allow people to nominate themselves for the Supreme Court job, which Ottawa will also announce Tuesday.

Any qualified Canadian lawyer or judge will be able to put forward their name for consideration and the government will take applications for the job in Canada’s highest court until the end of the day on Aug. 24. The board will review all applications and their recommendations will be based only on the pool of applicants.

“From now on, an independent and non-partisan advisory board will be given the task of identifying suitable candidates,” Mr. Trudeau wrote in acolumn published in The Globe Tuesday. “Gone are the days of governments – Liberal and Conservative alike – nominating Supreme Court justices through a secretive backroom process. Canadians deserve better,” he said.

Since Justice Cromwell comes from Nova Scotia, convention dictates that his successor should come from Atlantic Canada. Ottawa is not limiting the search process to Atlantic Canada, however, and the board will accept nominations from across the country.

Four members of the advisory board – a retired judge, two lawyers and a legal scholar – were nominated by the legal community. Groups that had a say include the Canadian Judicial Council, the Canadian Bar Association, the Federation of Law Societies of Canada and the Council of Canadian Law Deans. Three members, including Ms. Campbell, were appointed by the government.

The board will draw up a list with three to five names by late September and Mr. Trudeau is expected to commit to choosing a replacement for Justice Cromwell from this list even though the recommendations will be non-binding and the Prime Minister retains unfettered authority to appoint whomever he wants. The appointment will be made during the fall session of the Supreme Court, which begins in October and runs into December.

There are no sitting MPs on the panel, a departure from the way things ran under the Stephen Harper government, which selected some justices after review by a committee of MPs and at least one where the Prime Minister’s Office sidestepped MPs. Putting members of the public on the selection committee will make it similar to the process that existed under the Liberal government of Paul Martin in 2004 and 2005.

The moves are partly a response to the Nadon affair, in which the Supreme Court declared in an unprecedented ruling that Mr. Harper’s 2013 appointee, Justice Marc Nadon, lacked the legal qualifications to join the top court. The controversy highlighted secret manipulations of the selection process. After The Globe revealed that four of the six people the government asked a parliamentary committee to review were ineligible, the Conservatives complained of leaks and ended Parliament’s involvement in selecting justices.

Members of the new advisory board nominated by the legal community include: Susan Ursel, a senior partner with a Toronto law firm who has been recognized for her support of the lesbian, gay, bisexual, transgendered and two-spirited (LGBTT) communities in Canada; Jeff Hirsch, president of the Federation of Law Societies of Canada and partner with a Winnpeg law firm; Richard Jamieson Scott, a former chief justice of the Manitoba Court of Appeal and counsel, arbitrator and mediator at a Winnipeg law firm, and Camille Cameron, dean of the Schulich School of Law at Dalhousie University and Chair of the Canadian Council of Law Deans.

The Prime Minister said opening up the process helps reassure Canadians “that all members of the Supreme Court are both fully qualified and fully accountable to those they serve” across the country.

“The appointment of a Supreme Court justice is one of the most important decisions a Prime Minister makes. It is time we made that decision together.”

All candidates must be functionally bilingual, the government says.

The three members of the advisory board appointed by the Trudeau government include: Ms. Campbell, who served as prime minister in 1993 when she led the Progressive Conservative Party, former Northwest Territories premier Stephen Kakfwi and Lili-Anna Peresa, president of Centraide of Greater Montreal. Centraide is the Quebec presence of United Way Canada.

The government will mandate the advisory board to support the goal of a gender-balanced Supreme Court that also reflects Canada’s diverse society. With Justice Cromwell’s departure, the bench is equally split between men and woman and so a new ninth judge will tilt the balance one way or another.

“A diverse bench brings different and valuable perspectives to the decision-making process, whether informed by gender, ethnicity, personal history, or the myriad other things that make us who we are,” Mr. Trudeau wrote.

The government is restoring a measure of accountability to the process, promising to consult widely on the shortlist of candidates with the Chief Justice of Canada, with provinces and territories as necessary and with relevant members of cabinet, as well as opposition justice critics and the Commons and Senate justice and legal-affairs committees.

They’re also pledging to hold a question-and-answer session where MPs and senators can ask the nominated justice, before he or she joins the bench, to explain how they meet the criteria of the job. This will be open to members of the Commons Standing Committee on Justice and Human Rights, the Senate committee on legal and constitutional affairs, as well as representatives of the Bloc Québécois and Green Party.

“To further meet our commitment to transparency, we will invite the members of the House and Senate Committees, and representatives of all parties with seats in the House, to take part in a Q&A session with the nominee, moderated by a law professor,” Mr. Trudeau wrote.

Finally, all applicants will be required to complete a questionnaire when they seek the job and the answers they provide will be made public, except for responses to what are deemed personal questions such as references.

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