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Bob Rae critical of how Supreme Court judges are picked

The former Liberal leader debated the merits of the selection process with ex-PM Kim Campbell, chair of a group advising Prime Minister Justin Trudeau on whom to pick for a court vacancy this fall.

Former interim federal Liberal leader Bob Rae doesn't think Supreme Court justice candidates should have to apply to be considered. The Hill Times photograph by Andrew Meade

PUBLISHED :Thursday, Oct. 26, 2017 11:50 PM

Former interim federal Liberal Party leader Bob Rae has criticized part of Prime Minister Justin Trudeau’s new Supreme Court justice selection process as “misguided.”

Mr. Rae, Ontario’s former premier, said he disagreed with the requirement that candidates apply to be considered. He was speaking Oct. 26 alongside former justice minister and Progressive Conservative prime minister Kim Campbell at a panel discussion as part of a symposium hosted by the country’s highest court.

Ms. Campbell, who was Canada’s first female prime minister, currently chairs an independent advisory board tasked with creating a shortlist of candidates to fill Supreme Court vacancies, including one coming up this fall.

“I don’t think you should have to apply to be a justice to the Supreme Court of Canada candidate,” Mr. Rae told an audience in a packed courtroom in the Supreme Court building in Ottawa.

  

“I think the prime minister has to be free, and your committee has to be free to say, ‘Here are some people who’ve applied; here are some other people who have not applied, who we also think should be considered.’”

He added: “You have to go out and encourage people to apply. What’s the difference between that and getting tapped on the shoulder? You’re saying, ‘We’ll tap you on the shoulder to apply.’”

The new system, created under Mr. Trudeau (Papineau, Que.), involves the independent advisory board creating a shortlist of candidates for Supreme Court justice vacancies to be presented for consideration by the prime minister.

Ms. Campbell met with Mr. Trudeau on Wednesday evening, likely to present a three-to-five-person shortlist of potential replacements for retiring Supreme Court Chief Justice Beverley McLachlin. Ms. McLachlin, who has served as Canada’s top judge for 17 years, announced in June that she will retire from the court on Dec. 15.

  

Anyone who wants to be considered for filling Justice McLachlin’s seat must submit an application to the seven-person committee, comprised mainly of members of the legal community. On top of deciding the list of finalists, the advisory board is tasked with proactively seeking out interested candidates.

The advisory board is guided by specific criteria to ensure that nominees are “jurists of the highest calibre, functionally bilingual, and representative of the diversity of this great country,” according to the advisory board’s website.

In response to Mr. Rae, Ms. Campbell said the process does not prevent the prime minister from making an appointment outside the shortlist provided by her advisory board.

“Nobody’s encroaching. Nobody’s fettering his discretion. That’s his prerogative,” she said.

  

“What it does, is it allows Canadians who are not necessarily in the old boys network or professionally linked network that communicates with the prime minister to put themselves forward.”

Ms. Campbell said the board sends information out to different organizations that may recommend names of lawyers or judges they would consider suitable for the Supreme Court. From there, the advisory board would reach out and encourage them to apply.

This new process, she said, has made justice selections “more transparent and more open and inclusive,” allowing the board to find people you “might not otherwise see.” She added that if an individual knew that their name had been put forward, that might make them comfortable enough to apply.

“That is the Achilles heel in the sense with some people being shy about applying,” she said.

Mr. Rae said that he believed diversity of the court is “critically important.” He referenced U.S. Supreme Court Justice Thurgood Marshall, the first African-American to sit on the country’s highest court. Mr. Rae said he “would not have applied” to be on the court and was instead chosen.

“I think there are times when the prime minister has to exercise a view of who should be next,” he said.

Despite his criticism of how the selection process works, Mr. Rae praised the committee for providing the prime minister “broad-based” advice and a solid set of criteria.

‘I think our courts need to look like Canada,’ says former prime minister Kim Campbell, chair of the prime minister’s independent advisory panel on Supreme Court appointments. The Hill Times photograph by Sam Garcia

“The one point that’s very clear is that the appointment process has to draw from the widest possible pool of talent and the widest possible range of experiences. I certainly feel very strong that it will continue to happen,” he said.

Speaking to reporters following the event, Mr. Rae added that if you only can be considered if you apply, “I think that’s sometimes limiting yourself.”

“I think you need to be able to say from time to time you’re making an appointment because it’s absolutely the best person to do the job.”

He cited, reluctantly, the fact that Mr. Trudeau picked him to be the government’s special envoy to Myanmar, an appointment announced earlier this week. He will travel next week to report on the situation surrounding the treatment of the Muslim-minority Rohingya people in the country.

Ms. Campbell said during the panel that ensuring diversity on the court means the “commitment of the executive branch of the prime minister.” She noted that when prime minister Pierre Trudeau appointed Bertha Wilson, Canada’s first female Supreme Court justice, he had to be “dragged kicking and screaming to do it.”

“I think our courts need to look like Canada,” she said, adding that the debate on having a court that reflects the demographic makeup of the country is a discussion that would not have occurred in large scope 20 years ago.

Mr. Rae also said after the event that candidates with “the greatest scholarship and thoughtfulness and judgment” deserve to be on the shortlist of candidates.

“These are qualities that are widely available across many sections of the population, and you have to have as wide a lens as possible to make sure people are being considered,” he said.

“But it’s not about the political flavour of the month or anything like that. The best appointees have always been people of the highest scholarship and best judgment. And I think that’s been true since the beginning of the court.”

The former Liberal MP also said “having an Indigenous presence on the court is long overdue.”

“I believe that very strongly. But I think it’s important as well that everybody be considered … You want at the conclusion of any process like this, is to be able to say, ‘We consider a lot of people, and we considered the best possible person.’”

The Globe and Mail reported that two names in the legal community have been frequently mentioned as potential nominees: John Borrows and Mary Ellen Turpel-Lafond. Mr. Borrows is the Canada Research Chair in Indigenous Law at the University of Victoria whose background is Anishinabe/Ojibway. Ms. Turpel-Lafond is a Saskatchewan judge who took a leave to be the Representative for Children and Youth in British Columbia, which she did for a decade. She is a member of Saskatchewan’s Muskeg Lake Cree Nation.

Ms. Campbell acknowledged that the legal community is still wrapping its mind around the new selection system, which has so far only been used to select Justice Malcolm Rowe for the Supreme Court in 2016.

jlim@hilltimes.com

The Hill Times