International Law

Wrangling Over the Next Supreme Court Judge

By Matthew Shogilev

A few days ago, New Democratic Party (NDP) Justice Critic Joe Comartin (Windsor Tecumseh) called for the removal of Conservative MP and Public Works Minister Christian Paradis from the Supreme Court of Canada Appointments Advisory Committee. Mr. Paradis is among 67 Conservative candidates in the 2006 election who are presently facing litigation for alleged violations of the Canada Elections Act, (2000, c. 9). Elections Canada alleges that campaign funds from Mr. Paradis and former Foreign Affairs Minister Maxime Bernier were transferred to other Quebec-based Conservative Party candidates contrary to the Act. A more detailed account of the action against Mr. Paradis and Mr. Bernier can be found in this CBC article.

In Mr. Comartin’s view, Mr. Paradis’ inclusion in the Advisory Committee creates a conflict of interest with the potential to taint not only the appointment process but also the nominee that emerges.

In a letter to the Minister of Justice posted on the NDP website, Mr. Comartin confides that the litigation presently underway will, in all likelihood, reach the Supreme Court. Were this to happen, he warns, “the nominee that will come from the selection process will ultimately be sitting on the SCC when the issue of the CPC [Conservative Party of Canada] election financing case is heard.”

As a result, Comartin concludes that “any objective observer of a fair and transparent process to select a Justice to the SCC should not involve a participant whose interests will be an issue before the Court.”

The letter accordingly urges the Minister of Justice to request that Mr. Paradis withdraw his name from the Supreme Court of Canada Appointments Advisory Committee, and, in the event that Mr. Paradis does not acquiesce, replace him with another Tory candidate.

Generally speaking, I am inclined to agree with Mr. Comartin. Regardless of whether or not he harbours improper motives with respect to the appointment of the next Supreme Court justice, Mr. Paradis’ presence in the Supreme Court of Canada Appointments Advisory Committee — in light of the pending litigation against him — will surely generate controversy. This is especially problematic since the Supreme Court nomination process is still very much in its infancy. As Mr. Comartin suggests, equally as important as the presence of an actual conflict of interest, “is the perceived conflict in the minds of average Canadians? and their perception of an obvious conflict of interest should Mr. Paradis be involved in the selection process.”

That being said, in many respects Mr. Comartin raises a moot point. Even absent a specific conflict of interest such as the notion that a prospective Supreme Court nominee could be called upon to cast a decisive vote on the political fate of one of the politicians responsible for his or her appointment, it is fair to say that the actions of the Supreme Court of Canada have the potential to profoundly effect the fate of virtually every politician, regardless of whether an explicit conflict of interest exists.

Moreover, few would deny that any Parliamentarian who sits on the Supreme Court of Canada Appointments Advisory Committee (which is comprised of a mixture of elected officials, members of the legal community, and lay members) necessarily brings some political baggage to the table.

Indeed, the political significance of the Supreme Court in determining the electability of either party is readily discernable. One need only look as far back as the last federal election, shortly prior to which the Supreme Court ruled in Harper v. Canada (Attorney General), [2004] 1 S.C.R. 827. In Harper, Stephen Harper, then President of the National Citizens Coalition, challenged the constitutionality of several provisions in the Canada Elections Act related to third party funding. Specifically, Harper alleged that they contravened ss. 2(b) (freedom of expression), 2(d) (freedom of association), and 3 (voting rights) of the Canadian Charter of Rights and Freedoms. Given the changes that have taken place in the Supreme Court since Harper, it is quite conceivable that the next appointee to the Supreme Court could play a decisive role in a similar electoral litigation in the future.

Whatever the case, few would deny that the Supreme Court decision in Harper had clear implications for the political prospects of both parties. It therefore stands to reason that any politicians involved in the Supreme Court nomination process will bear these implications in mind.

By no means am I suggesting that political calculations of this sort have no place in the appointment process. Quite the contrary, they are relatively inescapable. What is important, however, is that the political side of judicial politics is openly acknowledged. To this end, Mr. Comartin’s letter and the controversy surrounding Mr. Paradis’ inclusion in the Supreme Court of Canada Appointments Advisory Committee is useful inasmuch as they shed light on delicate balance between democracy and judicial independence that accompanies the undertaking of appointing judges to the Supreme Court.

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Full post as published by The Court on July 31, 2008 (boomark / email).