By Sean Fine for The Globe and Mail
Supreme Court Chief Justice Richard Wagner says he would like to see public nomination hearings for appeal court judges, much like the ones held for Canada’s highest court.
“The days when judges were appointed without giving any explanations – where they came from, what they are doing, how they do it – I think those days are gone,” the Chief Justice said in an interview in his Ottawa office.
“Why? Because people need and deserve the information. There is no reason we should not give it to them. We have nothing to hide.”
Such hearings have never been held in Canada below the Supreme Court, and at that level only since 2006, and intermittently.
The Liberal government has been under fire this year over how it appoints judges to courts below the Supreme Court, such as appeal courts and senior trial-level courts in the provinces.
The Globe and Mail reported in April that the government uses a private database called Liberalist to conduct background checks on candidates for the bench, which allows it to see whether would-be judges have supported the Liberal Party. And last month, the Liberals were criticized after it was revealed that four of the six judges appointed to the federal bench in New Brunswick in the previous eight months have links to Liberal cabinet minister Dominic LeBlanc, which raised questions about the government’s use of partisan criteria in its choices for the judiciary. (One was appointed to an appeal court.)
While the Chief Justice’s comments were not directed at the news reports – he declined to comment on them – they show that a more transparent process has support at the highest level of the Canadian judiciary.
Justice Minister David Lametti said in an e-mail that he is always open to good ideas to improve the judicial appointment process.
The country’s biggest lawyers’ group is opposed, however.
“Parliamentary review of Court of Appeal nominees, with hearings that could become heavily politicized, could pose an unacceptable threat to the independence of our judiciary,” Raymond Adlington, president of the Canadian Bar Association, representing 36,000 lawyers, said in an e-mail.
“We are opposed to any system which would expose judges to parliamentary criticism of their judgments, or cross-examination on their beliefs or preferences or judicial opinions, or any measure which would give to Canadians the mistaken impression that the judicial branch answers to the legislative branch.”
The United States has public nomination hearings for federal judicial appointments, both at the appeal and trial levels, running hearings every second week in Washington, with four or five judges at a time. They have often been criticized as partisan affairs.
“I wouldn’t say they’re circus-like,” law professor Carl Tobias of the University of Richmond in Virginia said of the U.S. hearings, “but I do think they are often very partisan. They’ve become increasingly politicized and polarized. But I think there are some benefits to have nominees on the public record answering questions.”
Federal appellate courts in that country hear about 50,000 cases a year, while the Supreme Court hears about 100, he said. “So for us, the appellate courts are the Supreme Court for the area in which you live.”
If Canada were to go ahead, it should try to ensure substantive content, rather than partisan bickering, dominates the hearing, Prof. Tobias said. “Have rigorous background checks and rigorous questioning in the hearings and hopefully be able to discern if someone is not qualified. It’s very difficult to do.”
Chief Justice Wagner was chosen for his current role by Liberal Prime Minister Justin Trudeau in December, 2017. Since then, he has launched several initiatives to promote transparency, including publishing plain-language summaries of Supreme Court rulings and holding an annual news conference.
There have been just more than 60 appeal court judges appointed by the Liberals, or roughly half of all appeal court judges. Chief Justice Wagner said it is probably not practical to hold such hearings for federally appointed trial-level courts, because of the large number of appointments.
It was a Conservative prime minister, Stephen Harper, who established hearings for Supreme Court nominees. The parliamentarians who assemble to ask questions cannot reject the nominee. And he allowed no more than three days from his announcement of the nominee till the hearing date, making detailed preparation and research difficult. In the United States, by comparison, members of the Senate judiciary committee have five or six weeks to prepare for Supreme Court nominees.
Just as the Canadian Bar Association is skeptical today of the Chief Justice’s idea, the legal community was lukewarm to the idea of nomination hearings for the Supreme Court.
Mr. Harper chose not to have hearings for his final three appointments, after complaining of a breach of confidentiality in the appointment of Justice Marc Nadon in 2013. (The court eventually ruled that Justice Nadon lacked the required legal qualifications, and while he had had a public hearing, he never joined the court.) Mr. Trudeau opted in favour of a public hearing for all three of his Supreme Court appointments, including Nicholas Kasirer of Quebec, whose public question-and-answer session was on July 25.
“The fact that the judges of the Supreme Court are presented to the public in Canada is a great thing,” Chief Justice Wagner said. “It helps to increase the trust of the Canadian people.”
As for hearings for appeal court judges, “the best way to avoid bias and prejudice is to inform the people.”