LAW

CHOOSING JUDGES IN PRIVATE

BRUCE WALLACE October 28 1991
LAW

CHOOSING JUDGES IN PRIVATE

BRUCE WALLACE October 28 1991

CHOOSING JUDGES IN PRIVATE

By his own admission, Willard Estey was a compromise choice for the Supreme Court of Canada. “They happened to need a guy from Ontario and they couldn’t agree on who,” recalled Estey of his 1977 appointment to the Supreme Court bench just nine months after becoming Ontario’s chief justice. The deadlock was resolved, said Estey, who at the time was reluctant to leave the Ontario court, by “grabbing the Ontario chief justice.” Now retired from the Supreme Court and practising law in Toronto, the highly regarded former judge added: “I got moved into that job the same way \ was moved around by the Air Force during the war.” And Estey, like all other justices of Canada’s top court, began his new job without being subjected to the public examination that U.S. Supreme Court nominees have to undergo according to the American Constitution.

Canadian Supreme Court judges are named by the governor general on the advice of the prime minister, The only fixed requirements are that at least three of the judges must be members of the Quebec bar, and that any appointee must have been a member of a Canadian bar for at least 10 years. As well, all federal judges have been screened since 1967 by the Canadian Bar Association and, since 1988, by a five-member advisory committee made up of federal and provincial legal authorities that privately assesses candidates.

In practice, the power to shape the composition of the Supreme Court has rested with the prime minister, who is under no legal obligation to follow the advisory committee’s recommendations. Since Prime Minister Brian Mulroney took office in 1984, he has appointed eight of the nine current justices, and some Canadians have complained that the present appointment process could allow a prime minister to stack the court with political friends. As a result, some critics of the system have urged the introduction of a public review process for prospective justices. Said Frederick Vaughan, a political science professor at Ontario’s University of Guelph: “With the introduction of the charter of rights in 1982, these people exercise extraordinary power. They should undergo some measure of public scrutiny by our legislators.”

But other experts contend that such a process would merely graft another element of the U.S. political system onto Canada’s parliamentary form of government. And even those calling for changes to the system, including Vaughan, acknowledge that all Supreme Court justices since the 1960s have been well qualified. “The legal community does a very good job of regulating itself and weeding out bad lawyers,” said Vaughan. But as the influence of the Supreme Court grows, calls for an open review of new judges may increase.

BRUCE WALLACE

in Ottawa