This commentary was first published in The Lawyers Weekly on Sept. 23, 2011.
It is now four months since Justices Ian Binnie and Louise Charron announced their intention to retire from the Supreme Court of Canada at the end of July. Nevertheless, and disturbingly so, their successors have still not been appointed and the court remains two short of its full complement of nine judges.
When addressing the annual meeting of the Canadian Bar Association in Halifax last month Chief Justice Beverley McLachlin urged the federal government to ensure that the new justices would be appointed in sufficient time for them to take their places on the court when the court begins its 2011-12 term hearing of appeals in early October.
Her wish is unlikely to be granted. Rob Nicolson, the minister of justice, only announced on August 5 the procedure the federal government intended to follow in filling the two vacancies. The procedure involves the establishment of a five member selection panel of the House of Commons to review a list of names submitted to them by the minister and the committee's submission of a short list of six unranked candidates to the prime minister and the minister of justice.
The prime minister and minister of justice will then choose two names from the list and forward the names to an hoc committee representing the major parties in the House of Commons. The committee will then interview the candidates at a public hearing specially convened for the purpose. Following the hearings, the prime minister will announce the government's decision. (Curiously this last phase is omitted in the minister of justice's press release of August 5 but was presumably intended to be read in to make sense of the news release.)
There are several things that are wrong with this tortuous procedure. The unconscionable delay in filling the vacancies on the Supreme Court is an obvious cause of concern. Even allowing for the disruption caused by the federal election of last May, it should not have taken the federal government three months to announce the procedure it intended to follow to fill the vacancies.
An even greater concern is the fact that, as the position currently stands, no legislation prescribes the procedure to be followed. Rather, every federal government, whatever its political stripes, is free to follow its own preferences and free to ignore all previous precedents.
This unconstrained executive power is highly anomalous and is incompatible with the status and role of the Supreme Court in Canada's constitution. The Supreme Court of Canada Act covers in detail many other aspects of the court's composition, jurisdiction and modus operandi, and no reasons have been given why the most important feature affecting the court - the procedure to be followed in filling vacancies on the court and therefore the court's ability to function with a full complement of members - should be excluded from statutory regulation.
The current position is also inconsistent with the constitutionally entrenched status of the Supreme Court since adoption of the Constitution Act in 1982. Observers from all sides of the political spectrum regularly acknowledge the Supreme Court's role as the guardian of Canada's constitution and as having the final word on the meaning of the often open ended language of the Canadian Charter of Rights and Freedoms.
In a controversial 1997 decision the Supreme Court decided that the federal government is constitutionally bound to establish an independent commission at regular intervals to make recommendations with respect to desirable adjustments in the salaries, pension entitlements and other emoluments of federally appointed judges.
Given this important precedent, the time is surely ripe for the Supreme Court to be asked to declare that the Court's independence and freedom to discharge its constitutional responsibilities also requires adoption of a statutory procedure for the filling of vacancies free of the whims, caprices and delays that has dogged the procedure far too often up to now.