Those seeking reform might study how Trudeau revolutionised the processby Paul Daly / March 2, 2020 / Leave a comment
In the spring of 2016, I had a long, caffeine-infused discussion with one of Prime Minister Justin Trudeau’s advisers about the process for appointing judges to the Supreme Court of Canada. The PM’s advisers reached out to a large and diverse group of academics and practitioners around this time. Trudeau’s first appointment was coming up and informal consultations were a necessary precursor to putting in place a new appointments process.
Our discussion was very broad, but we agreed that the British approach to Supreme Court appointments was the “gold standard,” a model which Canadians could and should aspire to. So when Geoffrey Cox MP, the former attorney general, recently commented that Britain could learn something from Canada, I quietly chuckled to myself. Cox has now been replaced by Suella Braverman, but the place of the judiciary in the UK continues to attract discussion. The proper role of a judge in a democracy is likely to be central to the mandate of the planned constitution, democracy and rights commission
Are there any lessons in the Canadian model? Despite my amusement, Cox may have a point. From a British perspective, Trudeau’s reforms have two particularly interesting aspects: holding a public parliamentary hearing with the successful applicant; and publishing the completed questionnaire of the successful applicant for a vacancy. These will be especially interesting for those concerned (as the Boris Johnson ministry seems to be) about judicial overreach in the United Kingdom.
In earlier eras in Canada, judicial appointments, including Supreme Court of Canada appointments, were made in the absolute discretion of the prime minister of the day, in a process hidden from public scrutiny. Trudeau’s predecessors, Paul Martin and Stephen Harper, made efforts to increase the transparency of the process. But Harper’s commitment to this process waned after his appointment of Marc Nadon was, in highly unusual circumstances, invalidated by the Supreme Court.
Trudeau wished to go further and, in 2016, the retirement of Justice Cromwell presented him with the opportunity to put a new process in place. Trudeau created an independent advisory board and tasked it with creating a shortlist of three to five candidates. The position was advertised and applications were received—the application form, which was drafted by three of…