Canadian Lawyer

16 N O V E M B E R / D E C E M B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m Trudeau announced "a new Supreme Court appointment process that is open, transparent and will set a higher standard for accountability." What are its compo- nents? Any Canadian lawyer or judge who fits the statutory criteria can apply for the job. An "independent and non-partisan" board of legal luminaries will compile a short list of suitable candidates. The prime minister will choose the nominee. The minister of justice will explain to Par- liament's Standing Committee on Justice and Human Rights why that particular nominee was selected, and there will be a parliamentary Q&A session with the per- son chosen (it's not quite clear who will be invited to that jamboree). How substantial are the supposed reforms? OK, under the New Way, any lawyer or judge can apply for a Supreme Court vacancy. I'm guessing that those who apply will fit into one of two cat- egories. There will be the obvious possi- bilities, distinguished lawyers and judges who easily come to mind (some of them may even be discreetly nudged to send in their application). Then there will be the crazies and the no-hopers who will, of course, be ignored. So I don't think the idea that anyone can apply for the job will change things much. It's unlikely that surprising or unexpected but plausible candidates will pop up. It'll be the same old gang. Then there's that short list of appli- cants (three to five names, we're told) produced by the independent and non- partisan board. The board doesn't seem to do much that the old system of infor- mal consultation with leading members of the bar didn't do — nothing new here. And, of course, the prime minister still has the statutory power to pick the new judge in his sole discretion, just like in the old days. He may pick from the list pro- duced by the board, but he doesn't have to (although to ignore the list might be politically problematic). Anyhow, I'm bet- ting that the prime minister will be com- fortable choosing from the board's list, for the reasons I've given. It won't contain any weird or unexpected candidates. It will have reassuring, comforting names. There are no members of parliament on the board. That's a step backwards. The role of parliamentarians in the pro- cess has been diminished, not enhanced. In the recent past, there has sometimes been a limited consultative role in the early stages of the process for MPs repre- he Prime Minister has chosen 63-year-old Newfoundland Court of Appeal judge Martin Rowe to replace Thomas Cromwell, a Nova Sco- tian, on the Supreme Court of Canada. Justice Rowe was chosen in accordance with a new way of picking judges of our highest court (I call it the "New Way"). Justin Trudeau explained the New Way in an August op-ed in The Globe and Mail. The piece began with the usual political hand waving. "The top court's decisions affect us all . . ." "A diverse bench brings different and valuable per- spectives . . ." Blah, blah, blah. But then came some substance, albeit vague. T O P C O U RT TA L E S O P I N I O N @philipslayton SCOTT PAGE Plus ça change Reforms to the top court judicial selection process still leave power in the hands of the prime minister By Philip Slayton T A MOVE TO A U.S.- STYLE SYSTEM WOULD CREATE A TRULY TRANSPARENT AND ACCOUNTABLE PROCESS. AND IT WOULD GIVE THE PRIME MINISTER A LOT OF DISCRETION TO NOMINATE WHOMEVER HE WANTED.

• Cover