OTTAWA — It’s a situation perhaps most Canadians can’t fathom.
The idea that the country’s top political leader would stack the courts with partisan appointments — including a Supreme Court appointee at the 11th hour during an election when voting is already underway — in part to ensure that he or she remains in power, seems ludicrous, farfetched, undemocratic.
And yet, here we are on election day in the United States and this is the situation our neighbours to the south may face.
U.S. President and Republican nominee Donald J. Trump predicted last month that the presidential election “will end up before the Supreme Court.” He and the Republican Party rushed to confirm the appointment of Judge Amy Coney Barrett to the top court, cementing a conservative 6:3 majority for years to come.
Both the Republican and Democratic parties are preparing to wage war in the courts. Already, more than 300 election-related lawsuits have been filed across the United States. Republican Party lawyers in many swing states are seeking to make it more difficult for ballots in some Democratic-heavy counties to be counted.
Recently, the U.S. Supreme Court ruled on five election voting cases, with the rulings falling on party lines.
In split decisions, Chief Justice John G. Roberts Jr. sided with the more liberal justices in support, at least for now, of state efforts to count late arriving ballots in Pennsylvania and North Carolina. Roberts also sided with the conservative justices in support of local efforts to bar curbside voting for the disabled in Alabama, and to reimpose an election-day deadline for mail-in ballots in Wisconsin.
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As the U.S. chief justice attempts to shield his court from accusations it is too political, experts on this side of the border are breathing sighs of relief that the Canadian court continues to be seen as non-partisan.
“That’s a good thing,” said former prime minister Kim Campbell, who has thrice chaired Prime Minister Justin Trudeau government’s new Independent Advisory Board for Supreme Court of Canada Judicial Appointments.
Based on the Canadian Supreme Court’s rulings, there is no identifiable trend in terms which prime minister, from which party, appointed a specific judge, said Joanna Baron, the executive director of the Canada Constitution Foundation.
“You can’t say because a judge was a [Stephen] Harper appointee or a [Justin] Trudeau appointee that they are going to deliver so-called conservative or liberal outcomes,” she told HuffPost Canada. “Some journalists have tried to make the case…but it is not persuasive or consistent. It is manifestly not the case,” she said.
Campbell, in an interview last week, said appointments to the bench have “never been seen as something … based on the partisan views of the government at the time.”
This is not a uniformly held view. Political favouritism has played a large role in many judicial appointments and a judge’s ideology has guided some prime ministers’ decisions.
But there are several reasons why the more than a dozen court watchers contacted for this story believe the Canadian court continues to be seen as nonpartisan. They point to several broad reasons:1) Canadians are less partisan, 2) political parties have not used the courts to wage political battles, 3) the country’s appointment process is less political, and 4) the court’s culture and ideology is more uniform, though that appears to be changing. And for some Conservatives, it is a welcome change.
Partisan affiliation less present in Canada
Public institutions reflect the society in which they’re rooted, said Richard Albert, a constitutional law expert at the University of Texas at Austin, who clerked for former chief justice Beverley McLachlin.
“The Canadian Supreme Court is less partisan because Canadians are less partisan.”
Adam Goldenberg, a lawyer with McCarthy Tétrault, who also clerked for McLachlin and served as former Liberal leader Michael Ignatieff’s chief speechwriter, agrees. “There are people [in Canada] who vote Liberal and people who vote Conservative, but there are actually very few people who identify as Liberals or Conservatives.”
Goldenberg points to two reasons. First, unlike in many U.S. states, Canadians don’t declare their political party affiliation when they register to vote. Second, most political parties in Canada require a paid membership. These are extra steps needed to affiliate yourself with a political party, and none are necessary or typical to partake in the democratic process.
It’s unclear how many Canadians identify with a particular party. The Samara Centre for Democracy uses an estimate that two per cent of the Canadian population belongs to a political party. A 2015 report from Statistics Canada on civic engagement and political participation suggested 17 per cent of respondents were members of a political party, but the national statistics agency cautioned against the use of that figure.
Using numbers provided by the federal parties — the Liberal Party of Canada claims more than 200,000 supporters (it did away with paid memberships in 2016), the Conservatives boast 264,469 members, the Greens 34,680 members, and the federal NDP approximately 50,000, and taking into account provincial party membership rolls, and the estimated 32 million Canadians over the age of 14 who are eligible for a party membership, it is more likely the figure sits somewhere closer to Samara’s estimate.
But while membership remains low, federal election results since 2004 suggest at least 26 per cent of the electorate supports the Liberal party and 29 per cent support the Conservative party at any given time, based on their lowest level of support (in 2008 and in 2004, respectively). (This does not reflect the pool of accessible voters, but rather the strength of the party’s base.)
In the United States, a Gallup poll conducted at the beginning of October suggested 29 per cent of respondents considered themselves as Republican, 31 per cent as Democrats and 38 per cent as Independents.
Still, Goldenberg argues party labels in the United States are much more pervasive.
“Unlike Canadians, Americans are much more accustomed to thinking of one another in partisan terms,” he said. If someone becomes a judge, it is much more likely they were known as a Republican or Democrat lawyer — especially if they worked as a government lawyer and were appointed by one particular administration or another.
“Once you start publicly identifying judges as Democrats or Republicans, you sort of you create the basis of a self-fulfilling prophecy where their decisions are going to be viewed through a partisan lens,” said Goldenberg.
It is quite rare in Canada for high-profile partisans to be appointed to the bench, when they are — such as in 2014, when the Conservative government appointed its former justice minister Vic Toews to the Court of Queen’s Bench in Manitoba — criticism is swift.
Another reason partisanship looms large in judicial debates in the United States is that the Republican party is closely aligned with a particular ideology that matches up with the policy outcomes it champions. A narrow read of the constitution, through textualism (a belief that the constitution should be interpreted as it is written) or originalism (the belief that the constitution should be interpreted as the framers intended it to mean) analysis, usually helps curb an expansion of rights that more liberal-judges and liberal-minded politicians may seek to impose.
“That intertwining of partisan identity and approaches to the law has become second nature in the way we think about U.S. politics and U.S. judging in a way that it never has in Canada, even though on any objective standard, our judiciary is political and makes decisions that are shaped by politics in the lower case ‘p’ sense, they just aren’t castable in in partisan terms the way they are in the U.S.,” said Goldenberg.
In large part, that may be because those intellectual arguments have not been aggressively taken up by the Conservative party. (More on this later.)
Similarly, there is no pipeline like the one offered by the Federalist Society in the United States, whose membership provides young conservative and libertarian-leaning lawyers a way into government jobs and a chance to get noticed for federal judgeships under Republican presidents.
Canadian Supreme Court left out of political battles
In the United States, political parties have weaponized the judiciary as a fundraising and get-out-the-vote tool for their party’s base, arguing that rights and policies long fought for are now at stake.
Lori Hausegger, the director of Canadian Studies at Boise State University, noted how Roe v. Wade, the 1973 landmark decision that recognized a woman’s right to an abortion, has been brought into U.S. election campaigns, leading to increased calls to have ideologically compatible Supreme Court nominees.
None of this is present in Canada.
Perhaps, it is because the vast majority of Canadians believe those hot button issues — access to abortion, gay marriage, medical assistance in dying — are already settled.
Perhaps, it is because the Canadian constitution recognizes the ultimate supremacy of Parliament — in a way the U.S. Constitution does not. The court may not be the last word, if legislators are willing to use the notwithstanding clause.
Perhaps, it is because in striking down controversial legislation, such as the criminal ban on abortion in the R.v. Morgentaler case in 1988, the court left room for Parliament to pass a new law.
“You don’t have, as you do in the United States, conservative politicians running for office saying, ‘I want to appoint judges who will overturn the Morgentaler decision’ because you don’t have to overturn the Morgentaler decision to limit access to reproductive health care,” said Goldenberg.
As U.S. partisan battles intensify and legislators become more dogmatic, Supreme Court nominees become martyrs and heroes to their side’s cause. The court becomes tainted by politics, and, Canadian Independent senator and former Quebec Court of Appeal judge, Pierre J. Dalphond argued, its legitimacy erodes.
“[It] harms the trust that the people should have in the court,” he told HuffPost. “It’s affecting the legitimacy of the institution… now I think the U.S. Supreme Court is being seen as mandated to deliver a specific agenda.”
Hausegger pointed to the Senate’s confirmation vote as evidence the U.S. political system is becoming more polarized. Last month’s vote confirming Barrett (52-48) received no Democrat’s support, and all but one Republican — Maine’s Susan Collins, who is in a tough re-election battle — voted in favour. Trump’s other nominees, Brett Kavanaugh (50-48) and Neil Gorsuch (54-45), were also confirmed by tight partisan vote splits.
While in 1993, Ruth Bader Ginsburg was confirmed by a vote of 96-3, and 1986, Antonin Scalia, was confirmed unanimously, 98-0.
While there is no such nomination process in Canada — one marred by partisan fighting — in some ways the process is more political.
Arm’s length-appointment process may neutralize accusations of partisanship
Unlike in the United States, where Supreme Court justices are appointed by the president but confirmed by a majority in the Senate, in Canada, the prime minister can pick any eligible jurist to the country’s top bench, give that name to the governor general and voilà the appointment is made.
(The federal government also appoints all the judges to the higher courts of all the provinces and territories, not to mention the federal courts and tax court, without much public scrutiny.)
Typically, for a Supreme Court appointment, the minister of justice and the Prime Minister’s Office will work in close collaboration, with at least one powerful regional cabinet minister weighing-in with his or her thoughts on the nomination before it reaches cabinet for discussion.
Campbell, who appointed 125 judges during her time as prime minister and justice minister, noted that governments “can’t avoid some partisan aspects of judicial appointments, simply because lawyers are often very involved politically. And … they often have better relations with one party than another.”
One judge who made the Supreme Court shortlist three times during the Harper years suggested he felt his name was added as padding to ensure it appeared a search had been made before the government chose its preferred candidate. His decades-old involvement with the Liberal party may not have helped.
Many of the justices on the Supreme Court and judges on lower courts have close ties to people in certain political parties. Rumours that so-and-so worked closely with this former cabinet minister, or this person’s partner is a big donor to this political party abound. During the Conservative leadership race earlier this year, former justice minister Peter MacKay’s appointments raised eyebrows after a story recirculated noting that six of the nine judges he appointed in Nova Scotia had ties to him, his family or his party.
Political favourtism has been a hallmark of the judicial appointment process for generations.
For example, in their paper on federal judicial appointments during Progressive Conservative prime minister Brian Mulroney’s first four years in government, Peter H. Russell and Jacob S. Ziegel found 47.4 per cent of appointees had a known association with the Conservative party — a quarter of them former candidates, party officials or “bagmans.”
Outside of the big provinces, that number spiked upwards of 70 per cent in the Maritimes and in Saskatchewan, and more than 87 per cent in Manitoba. Their study — which did not include Supreme Court appointees — found that judicial promotions were “not necessarily based on merit” and that “among the most poorly regarded appointees — those considered fair or weak — there was a disproportionately large number wth political connections to the government,” 76.9 per cent (10 out of 13). They suggested the same type of political favouritism was present during the previous Liberal government’s tenure.
During Mulroney’s second term, a new process was established whereby a committee of lawyers, judges, and representatives chosen by both the federal and the provinces would advise the government as to whether the candidates contemplated for appointment were qualified to be new judges. This process did not apply to Supreme Court nominees but laid the groundwork for some of the changes to come.
The first change happened in 2004, when a Commons committee recommended an advisory committee should be formed with MPs from all official parties, representatives from the provinces, judiciary and legal profession as well as lay members, who would deliberate in camera and propose a confidential shortlist of candidates to the justice minister.
In 2005, Liberal justice minister Irwin Cotler introduced a modified version of the process, submitting a list of five to eight names to a similarly formed advisory committee that would narrow down the shortlist to three. The Liberals were defeated before making an appointment. The newly elected Conservative government had run on a promise the proposed Supreme Court nominee would be publicly grilled by MPs — something similar in scope to the Senate hearings in the United States.
Harper nominated Marshall Rothstein, of the Federal Court of Appeal, who answered MPs’ questions for two hours. It was a polite affair. He was confirmed two days later.
That process was not followed for Justice Thomas Cromwell in 2008 because of the federal election and a lengthy vacancy on the court. But it was re-established for Andromache Karakatsanis and Michael Moldaver in 2011 and for Richard Wagner in 2012.
In 2013, Harper’s effort to find a Conservative-friendly justice to fill one of Quebec’s three seats on the top court backfired when Marc Nadon, a semi-retired federal court of appeal judge with expertise in maritime law who was the only the judge to side with the Harper government over Omar Khadr’s request to be repatriated from Guantanamo Bay, was deemed to be ineligible to serve on the Supreme Court, by the court, because he did not meet the constitutional requirements.
The whole affair touched off an unprecedented public spat between the Prime Minister’s Office and the then chief justice of the Supreme Court, whom Harper accused of improper interference.
Harper responded by abandoning the new advisory appointment process and the public hearing for his next appointments to the bench: Justice Clément Gascon and Suzanne Côté in 2014.
In 2015, days before the federal election call, Harper appointed Conservative judge Russell Brown to the Supreme Court. Brown, whose anti-Liberal bent was obvious on his blog, was plucked from academia in 2013 by Harper, placed on the Alberta bench, and elevated in 2014 to the court of appeal. He was sworn in as a Supreme Court justice during the election campaign on Aug. 31, 2015.
In 2016, the Trudeau government announced the establishment of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, an arm’s length non-partisan body that would seek out and receive applications from interested candidates and develop a shortlist of three to five candidates for each new vacancy.
The membership of the board, aside from Campbell as its chair, typically included three federal government nominees, including two non-lawyers, a lawyer nominated by the Canadian Bar Association, a lawyer nominated by the Federation of Law Societies of Canada, a retired judge nominated by the Canadian Judicial Council, and a legal scholar nominated by the Council of Canadian Law Deans. The make-up of the board depended on the regional vacancy, and for Quebec there were two representatives nominated by the province’s justice minister.
In announcing the change, Trudeau made it clear he was looking for functionally bilingual jurists, greater diversity on the bench, and was opening up the process to allow people to apply directly.
Members of Parliament would not get a formal say, but after receiving the shortlist from the board, the minister of justice would consult opposition critics and members of the relevant House of Commons and Senate committees, as well as provincial and territorial attorneys generals and cabinet colleagues. After the announcement, the justice minister and the chair of the board would appear before the Commons justice committee to answer questions regarding the newest Supreme Court nominee.
So far, three justices have been appointed through the process: Newfoundland and Labrador’s Malcome Rowe (2016), Alberta’s Sheilah Martin (2017), Quebec’s Nicholas Kasirer (2019). They have all taken part in a very tame public question and answer session with MPs and senators after their nomnination.
Dalphond, who chaired similar advisory committees for appointment to the Quebec courts when he was a judge, describes them as a “serious screening process,” conducted “as neutral as it can be” knowing that the last decision will be political.
The public hearings are a polite introduction to the Canadian public, he added, rather than the beginning of a contentious process as seen in the United States.
Campbell also believes the selection process works very well, although she bemoans the fact that few women and racialized Canadians have applied to join the top court.
It’s a far cry, she said, from the old “opaque process” where “people would sort of get, you know, tapped on the shoulder to be asked if they wanted to serve on the court.”
Trudeau has picked a candidate from the board’s shortlist for each appointment. But nothing binds him — or any future government to do so.
Just as Harper showed.
It’s the prime minister’s prerogative, Campbell noted. “I can’t imagine any prime minister is going to give away the prospect of making those appointments. But by having this process, it makes it less of a kind of personal frolic on the part of a particular prime minister and makes it something that is broadly consultative.”
It won’t get rid of political favourtism, Dalphond said, but it will ensure people are qualified.
“If [the PM] has the chance to appoint three people and the three are well qualified, and you prefer to select your friend than somebody else, for me, I can live with that,” he said. “A, B or C, it doesn’t really matter, as long as you are all qualified.”
It’s important to have a pre-selection process to ensure both that friendship doesn’t become a criterion for appointment, Dalphond added, but also that people are not prevented from appointment “because he gave to the party five years ago [and the government is] scared that the somebody in the House is going to ask questions about this.”
Is change afoot?
Former prime minister Stephen Harper acknowledged trying to appoint more conservative judges to the court. But experts note there were few ideologically aligned judges available to promote. In 2014, Harper appointed two Western University law professors — so-called originalists — to the bench, Grant Huscroft to the Ontario Court of Appeal, and Bradley Miller to the Ontario Superior Court. Miller was promoted a year later to the appellate court.
Writing in The Globe and Mail, Sean Fine noted in 2015 how the Conservative government had named 600 of the 840 full-time federally appointed judges, calling them “a farm team or development system for the Supreme Court.”
He mentioned Harper’s publicly expressed desire to appoint judges that were aligned with the government’s agenda. His former deputy chief of staff, Howard Anglin, spoke to the CBC about the challenge of stacking the Supreme Court when convention dictates judges must come from certain parts of the country — one from Atlantic Canada, two from Western provinces, three from Ontario and, constitutionally, three from Quebec, who must also be trained in civil law. The pool of qualified candidates gets smaller and it gets harder to pick someone who leans more politically in one direction, he is cited as saying.
Former prime minister Campbell credits the make-up of the court — the fact that it has specific regional representation — as a factor that “kind of elbows out any kind of partisan or philosophical sense.”
If the prime minister wants to “appoint people on an ideological basis, the institutional arrangements in Canada would certainly allow them to do so!,” Troy Riddell, an associate professor and chair of the Political Science department at the University of Guelph, told HuffPost in an email. “But Canadian politics is less polarized (at least for now) and I think that helps explain why PMs don’t seem to be too concerned with appointing judges along ideological lines.”
But that could be changing.
A Canadian version of the Federalist Society is popping up on Canadian campuses. The Runnymede Society aims to diversify the types of discussion about the law in Canada, arguing that there is too much groupthink in law faculties.
“We have basically uniformity of thought in most of the law schools in the country,” said Baron, of the Canadian Constitution Foundation, which set up the Runnymede Society. “There should be more textualists at all levels of the courts across the country. But we don’t have that because we don’t.”
The Runnymede Society is fighting against the dominant legal culture, one that believes the Canadian Charter Rights and Freedoms is a living tree that adapts to changing circumstances and norms. That approach, known as a purposive interpretation, was endorsed by the court itself in 1984 during a ruling known as Hunter et al. v. Southam, in which the justices said the “proper approach to the interpretation of the Charter of Rights and Freedoms is a purposive one.”
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Mark Mancini, the director of the Society, believes not enough students are being exposed to textualism or originalism in the classrooms. “We want to present that idea to students,” he said to let them debate it and decide for themselves what to think about it.
But Mancini pushes back on the idea that textualism is a conservative ideology. “It’s just about reading the words that Parliament passed in their context,” he said.
Baron points to Kerri Froc, a law professor at the Univeristy of New Brunswick, as proof that there are liberal originalists.
Runnymede is no longer operating on the sidelines. Next year, Supreme Court justice Malcom Rowe will give the keynote speech at their law and freedom conference.
“It could well be, it could well be, that one day you will have a group of similar stature in Canada, similar to the stature of the Federalist Society in the U.S., not only in terms of what it represents, which is diversity, ideological diversity, which can not be anything but a good thing, in my view, and it would also perhaps have influence in politics and constitutional politics more specifically,” Albert said.
He believes the biggest reason partisanship is not present on the Supreme Court is that the battle over the Constitution’s interpretation “is not a battle being fought in Canada.
“[Whereas] in the U.S., there’s a tug of war between originalism and living constitutionalism.”
Outside the courthouse, discussions about originalism certainly don’t loom as large, and even debates about judicial activism seem to have lost much of their enthusiasm, but inside the courtroom division is happening more frequently.
The consensus court McLachlin sought to build has disappeared.
In 2018 and 2019, the majority of the decisions rendered by the Supreme Court were on divisions. Though by historical standard, McLachlin’s court is an anomaly.
Dalphond, like many others, believes consensus is a good thing. It provides clear direction to lower courts and carries the weight of the entire bench.
“The task of the court is to give guidance to the public and the legal profession on issues of law,” McLachlin wrote in her memoir, Truth Be Told: My Journey Through Life and The Law.
“That guidance is clearer when the court speaks with one voice; a variety of judgements offering slightly different perspectives on a particular point may underine certainty,” she wrote.
“The system is based on consensus,” Dalphond said. “Division is not good. But the U.S. Supreme Court is very divided.”
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Mancini believes dissent at the top court is desirable.
“That’s just healthy,”he said. “I think it’s healthy for judges who have different views on how to interpret the law and the Constitution to demonstrate those differences. And many in the legal community see a dissent in a case today could become the law tomorrow,” he noted.
McLachlin’s dissent in the Sue Rodriguez case on medically assisted dying is a perfect example. She was offside with the majority in 1993 but the court had caught up to her thinking in 2015 when, in Carter, it struck down the law declaring physician-assisted dying an indictable offence.
The Supreme Court’s chief dissenter at the moment is Côté, another Harper appointee. She disagrees nearly a third of the time, according to research by Ottawa University law professor Vanessa A. MacDonnell. But MacDonnell could not find any pattern Côté’s aligning herself with similar-minded justice or a bloc. Some have suggested it may be a reflection of the fact she has been elevated from private practice directly to the Supreme Court and is still finding her way around the collegial table.
This Supreme Court is a different court. A young court. A changing court. One with vastly different opinions, from Rosie Abella’s fight for union rights on one side, and Brown, who has been described by some as a textualist, on the other. Rowe, a Trudeau appointee, appears more restrained in his ideology, and closer to Brown than the other justices on the court.
Appointing judges based on how you think they are going to rule can be a “mug’s game,” Campbell said.
“The thing about judges is that it’s very hard to predict. … There are some judges who turn out to be totally different from what was expected.”
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