Canadian Lawyer

w w w . C A N A D I A N L a w y e r m a g . c o m N O V E M B E R / D E C E M B E R 2 0 1 6 17 senting the various parties, most notably leading up to the appointment of Thomas Cromwell. According to the New Way, by the time parliamentarians get into the act, the deed will be done and the judge will have been chosen. It looks to me as if the iron grip of the prime minister on the process of appointing a Supreme Court justice has lessened not a whit. If anything, his grip has tightened. So these much-touted reforms don't add up to much. The system of choos- ing Supreme Court justices is still domi- nated by the prime minister. The changes that have been made are inconsequential. Accountability and transparency? Not so much. What a disappointment for those of us who, for many years, have called for real change! A U.S.-style system would be a much better approach. Here's how it would work. The prime minister nominates a candidate following whatever consultation he deems appropriate. A parliamentary committee holds extensive public hearings to consider the nominee. If the committee approves the nominee, Parliament votes on the prime minister's choice. Several weeks elapse between the prime minister's nomination and the hearing of the parliamentary com- mittee to allow for full and public scrutiny of the prime minister's choice. Of course, executive control of the legislative branch in a parliamentary system likely makes parliamentary approval of an executive decision a formality, particularly if there is a majority government. Nonetheless, the political effects of a public parliamentary process would introduce a new and unpre- dictable democratic dynamic. A move to a U.S.-style system would create a truly transparent and account- able process. And it would give the prime minister a lot of discretion to nominate whomever he wanted. Which takes us to that pesky so-called constitutional conven- tion about geographic representation on the Supreme Court, which, so they say, required that the Tom Cromwell seat be filled by someone from the Maritimes. Word has it that Prime Minister Trudeau is not impressed by this constitutional con- vention and was interested in appoint- ing an indigenous person to the Supreme Court no matter what part of Canada she came from. Many commentators thought he should do this (I'm one of them), that it was past time, but politicians, particularly those from eastern Canada, felt differently. Pressure was brought to bear. There was a lot for the prime minister to think about in making this appoint- ment. There were many competing and interesting considerations. Remember, Trudeau could have chosen whomever he wanted. He could have chosen an indig- enous woman. So, dear reader, who did he pick? An old white guy, and yes, from the Maritimes. A timid choice. It was business as usual. The constitutional convention is intact. Back to sleep, everybody. One other thing: The prime minister has said any new Supreme Court judge must be bilingual. It is reported that Justice Rowe took a French immersion course in August. It must have been a pretty good course. Philip Slayton is immediate past president of PEN Canada. He is working on a book about freedom in Canada. Easy does it Your search for legal information and insight just got easier. Lexis Advance ® Quicklaw ® Intuitive design Exceptional content Productivity tools Anywhere access lexisnexis.ca/Xa"cdk ntitled-2 1 2016-10-31 11:01 AM

• Cover