Is the Supreme Court review process dead? Was it ever really alive?

The Prime Minister appoints a justice without parliamentary review
A statue entitled ’Justice’ in front the Supreme Court of Canada is framed with the Peace Tower on Parliament Hill in Ottawa April 24, 2014. The Supreme Court of Canada will deliver its opinion Friday on how Canada’s unelected Senate can be reformed or abolished. REUTERS/Chris Wattie (CANADA - Tags: POLITICS) - RTR3MJ6J
Sean Kilpatrick/CP
Sean Kilpatrick/CP

This morning, the Prime Minister announced a new appointment to the Supreme Court. The new appointment does not seem to have been preceded by a review of an all-party selection panel, and there is no indication as yet that the new appointee will be questioned in public by a committee of MPs before joining the Court; the process this government had established for selecting Supreme Court justices seems to have been abandoned in the wake of the Nadon debacle, a decision the government has linked to a leak about that selection to the Globe and Mail.

This is possibly something of a loss, but it’s worth noting what was lacking in the short-lived process. Emmett Macfarlane criticized the public hearings in a piece for us in 2011, Adam Dodek has twice written this year about the shortcomings of the process the government established, and Liberal MP Irwin Cotler has added his own criticisms. In short, however much we might want to have Supreme Court appointees subject to parliamentary review, the system set up by the Harper government to do so was seriously flawed.

Although a panel of MPs was assigned the duty of drafting a short list of candidates for the government to consider, the panel was composed of a majority of MPs from the governing party. And in his book, Irresponsible Government, Independent MP Brent Rathgeber, who was part of the selection process as a Conservative MP in 2011, suggested the Conservative members of the panel were something less than independent:

As with everything in the Ottawa Bubble, there were attempts by the Prime Minister’s Office to control the appointment process, or, at least, influence it. Conservative members of the committee would meet separately from the full committee with PMO staffers frequently present. This parallel selection committee assured that the vetting progressed in a manner acceptable to the PM.

Rathgeber also wrote about his criticisms of the process after Marc Nadon was ruled ineligible:

Bad process will almost always lead to an inferior result. What is required is a less politicized and more thorough vetting of prospective candidates. The entire process needs to be more transparent and process, not conclusion, driven.

Whatever Stephen Harper believed in 2006, he has apparently come to be convinced otherwise. And so a bad process has been eliminated. Only it hasn’t been replaced by anything like a more open and transparent process.