“Often the power of the federal government to follow its own preferences when selecting new judges for the Supreme Court has been abused,” says Jacob Ziegel, professor emeritus in the faculty of law at U of T. “The incumbent federal government continues to choose the people it feels comfortable with and who are expected to reflect its political philosophy.”
The process by which judges are appointed to the Supreme Court is an often impromptu construction. When vacancies arise, it falls to the current federal government to determine how to fill them as necessity dictates. Bearing this in mind, it is easier to understand why Karakatsanis and Moldaver were chosen than it is to understand how they were chosen.
“The federal government compiled a list of potential candidates from a variety of sources,” explains Ziegel. “This was done for the benefit of a selection panel of five members from the House of Commons, consisting of three Conservative MPs, and one MP each from both the Liberal and the NDP. The panel was asked to choose six names and the shortlist was submitted to the Prime Minister who made the final choice of two.”
Like many other observers (including Sébastien Grammond of the Faculty of Law at the University of Ottawa and fellow professor emeritus in the U of T Department of Political Science Peter H. Russell), Ziegel has been openly critical of the lack of transparency and accountability in the filling of Supreme Court vacancies for many years. He has expressed these criticisms in a number of publications, including the National Post and The Globe and Mail. In one of his commentaries published September 27 on the U of T Faculty of Law blog, he refers to the delays in Supreme Court appointments as “unacceptable,” describes the process of selection proposed by the federal government as “tortuous,” and describes the lack of legislation prescribing the procedure as being of “even greater concern.”
“The new procedures have two manifest weaknesses,” Ziegel writes in his commentary, The right way to pick Supreme Court judges, published August 19 in the National Post. “The first is that the members of the selection panel will not be free to select the candidates they wish to consider and to recommend their appointment. The second and still more serious objection is that it misconceives the status and role of the Supreme Court of Canada in Canada’s constitutional structure. The Supreme Court is an independent institution and is not accountable to Parliament for its decisions or to the incumbent government. It is the guardian of Canada’s constitution and of the basic values enshrined in the Canadian Charter of Rights and Freedoms.”
When asked about the criticisms levelled against Justice Karakatsanis for her limited experience as a member of the Ontario Court of Appeal and of Justice Moldaver for being unable to speak French, Ziegel responded that he doesn't question their qualifications, but rather laments a missed opportunity. “I've said publicly that I believe that one of the two judges that should have been appointed was Justice Robert Sharpe of the Ontario Court of Appeal. He's a superb scholar and judge, very fair-minded, writes beautifully, renders his judgements quickly, and speaks French fluently. He has all the desirable qualities of a Supreme Court Justice and I think it's extremely unfortunate that he was not selected.”
Ziegel cautions against a justice system that allows for deep divisions amongst judges based on their own philosophical beliefs and the unconstrained executive power which makes it possible. While the potential for bias is widely acknowledged, there is no effective mechanism in place to address it.
"It was fairly predictable that the candidates that were actually chosen would appear to have a conservative bias,” concludes Ziegel. “It doesn't mean that they're bad choices - quite the contrary, each of them has very considerable merits - but it does mean that they were chosen to reflect the philosophy of the government in power and not on the basis of the best available candidates.”