This commentary by Prof. emeritus Jacob Ziegel was first published in The Hill Times on Dec. 12, 2011.
On Nov. 14, former chief justice Roy McMurtry of Ontario and several current members of the Ontario Court of Appeal attended the swearing-in at the Supreme Court of Canada of the two new appointees to the court, Justices Michael Moldaver and Andromache Karakatsanis, both from Ontario. While they were in Ottawa, a reporter for The Lawyers Weekly asked McMurtry and the Appeal Court judges for their reactions to the questioning of these candidates by the House of Commons Ad Hoc Committee before their appointments were confirmed by the Prime Minister.
McMurtry said he thought the questioning of Justice Moldaver was too aggressive and he expressed concern that Canada was gravitating to the type of hostile questioning of candidates for appointment to the U.S. Supreme Court by members of the U.S. Senate Judiciary Committee. McMurtry was apparently referring to NDP MP Joe Comartin’s criticism of Justice Moldaver’s lack of bilingualism and his skepticism that the justice would ever become adequately bilingual despite his assurances to the committee that he would give this objective a top priority.
The other members of the Ontario Court of Appeal, who were interviewed in Ottawa by the journalist, had no problems with the questions addressed to Justice Moldaver, but thought they should have been directed to the Harper government because it was the government that had selected these candidates for prospective appointment to the Supreme Court.
McMurtry and his judicial colleagues had their priorities all wrong. Their focus should have been not on the procedure before the ad hoc Parliamentary committee, but on the deeply-flawed appointive system for Supreme Court of Canada judges that has persisted since the creation of the Supreme Court in 1875. It is true that Paul Martin, while Liberal prime minister, made some non-statutory changes to the appointive system in 2004 and 2005, and that Harper made another set of changes after he assumed office. However, these changes have not changed the balance of power between the Prime Minister’s Office and the selection committee. Nor have they made the selection committee less partisan in its deliberations: the incumbent government still remains firmly in control of the selection process—free of any statutory restrictions.
Harper made it clear when he was first named Prime Minister in 2006 that he wanted judges who “applied the law and did not make it.” He has made good on his commitment although many observers would question his understanding of the judicial role, especially in the context of the Canadian Charter of Rights and Freedoms.
On and off the bench, Justice Moldaver has been very critical of defence counsel who, in his view, have abused an accused person’s rights under the Canadian Charter. So, clearly, he would have met Harper’s test of the right type of judge for the Supreme Court. Justice Karakatsanis had only been on the Ontario Court of Appeal for two years before her nomination for appointment to the Supreme Court of Canada and therefore for too short a period to be able to articulate her Charter philosophy. Nevertheless, the consensus among many observers appears to be that she was selected for elevation to the Supreme Court because it was assumed her long service as a senior civil servant in the Ontario government would bias her in favour of government in contests involving individual Charter rights, particularly in the criminal law area.
There may be those who believe that, because a short list of candidates was prepared by an all-party committee of the House for submission to the Prime Minister, this guaranteed an independent assessment of the candidates’ merits. The reality was otherwise. The Conservatives had majority representation on the committee — three out of five members. Just as important, the list of candidates for review by the committee was prepared in the justice minister’s office. It would be naive to assume that the list was not heavily skewed in favour of candidates whose judicial philosophies were believed to reflect a conservative bias.
As a former attorney general of Ontario and former chief justice of the province, McMurtry must have been intimately familiar with all levels of the federal judicial appointments process. If he wishes to avoid embarrassing questions to future candidates for appointment to the Supreme Court of Canada, he should firmly nail his colours to the mast and publicly join those who, for many years, have called for radical improvements in the system of federal judicial appointments — at all levels.
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