Benchers to ask Federation to study SCC appointment process

The Benchers will ask the Federation of Law Societies of Canada, at the earliest opportunity, to re-examine the process for appointments to the Supreme Court of Canada, with a view to establishing a common position on behalf of the law societies.

The Law Society’s Independence and Governance Committee, chaired by Vancouver Bencher Gordon Turriff, QC, reminded the Benchers in February of the Prime Minister’s stated position that there should be a new process for appointments to the court. A parliamentary committee studied the issue last year, considered submissions and issued a report with both long-term recommendations and short-term recommendations (relating to two vacancies).

The names of the nominees for those two appointments came before an ad hoc committee, which was briefed by the Minister of Justice on the candidates and how they were selected.

In the view of the Independence and Governance Committee, the legal profession should take the time now to prepare a considered position on the Supreme Court of Canada appointments process, in advance of any new appointments.

The Committee framed two questions that the Benchers agreed to put forward to the Federation:

  • Should the system for reviewing and/or advising on appointments to the Supreme Court of Canada involve a pre- or post-nomination review process?
  • Should parliamentarians be included in any committee tasked with advising on or reviewing appointments to the Supreme Court of Canada?

In its own review to date, the Independence and Governance Committee has concluded that a public review should not occur prior to appointments to the Supreme Court of Canada as this might greatly reduce the number of qualified candidates willing to be considered. The Committee contemplated a limited post-selection review by a body composed of lay people, judges, leading members of the bar and possibly parliamentarians that could provide the Prime Minister with comment before an appointment is finalized.

The involvement of Members of Parliament in any review or advisory committee is a critical issue that needs careful consideration — and the Committee did not recommend a specific approach to the Benchers. In its interim submission to the parliamentary committee last year, the Federation stressed the importance of not politicizing the appointments process.