Charron and Binnie Announce Retirement: Harper Set to Handpick Supreme Court Majority

May 20, 2011

On May 13, Chief Justice McLachlin announced the imminent retirement of Justices Ian Binnie and Louise Charron from the Supreme Court of Canada. Both departures are set to take effect at the end of August; however, Binnie has apparently agreed to remain on the Bench until his successor has been officially appointed.

Retirement should come as no surprise from Binnie, whose 14 years of service and 72 years of age have left him just three years shy of mandatory retirement. The announcement was slightly less expected from the 60-year-old Charron, who has spent just seven years on the Bench, yet her decision appears to be grounded in an entirely uncontroversial desire to spend more time with her family. All in all, two of Canada’s most powerful unknowns are set to slip away quietly, and without controversy.

In this age of relentless mass communication, where personal privacy is losing ground in its battle against the extremist forces of full disclosure, there is something unsettling about the Supreme Court’s apparent exemption from public scrutiny.

This lack of public scrutiny may very well facilitate the level of independence required for an effective and unbiased judiciary; however, it also reflects a distinct lack of critical civic engagement on behalf of the Canadian people. In the political realm, for better or worse, Canadians have had no problem holding public officials accountable for their private shortcomings (Adam Giambrone comes to mind, but there is no shortage of other examples). When it comes to judges, however, Canadians appear disinterested. Despite the unparalleled esteem of their position, Supreme Court Justices enjoy an unusual combination of great power and great anonymity.

While the Supreme Court obtains a certain value from being ignored, one would be hard-pressed to effectively defend the broader democratic value of an inattentive and uncritical Canadian public. As indicated by voter turnout in the recent federal election (61.4%), civic apathy is a legitimate concern. For those who believe Canadians should be paying more attention to the political appointees whose judgments will influence nearly every facet of their lives, the upcoming appointment process offers a tremendous opportunity to spark public debate.

The simultaneous retirement of Charron and Binnie will provide Prime Minister Harper with a rare opportunity to appoint two Supreme Court Justices at once. Justices Louis LeBel and Morris Fish will also (knock on wood) reach the mandatory age of retirement in the next few years. Throw in the recent appointment of Justice Marshal Rothstein (2006) and Justice Thomas Cromwell (2008), and Harper will have personally selected six of the Supreme Court’s nine judges before the end of his term in office. Evidently, Harper’s newfound majority is not restricted exclusively to the House of Commons.

Despite his recent success, Harper has endured his fair share of criticism. Critics have portrayed him as secretive, authoritarian and socially regressive. Alternatively, supporters have embraced his commitment to smaller government, fiscal prudence and public accountability. It is clear, therefore, that both camps have reason to be concerned with a lack of transparency in the appointment process. Transparency, it seems, serves as rallying cry for all political parties, regardless of ideology. When in doubt, an opposition handbook might state, demand transparency.

With the exception of section 4(2) of the Supreme Court Act, RSC 1985 c S-26, which requires the Governor in Council to approve all appointments, Canadian statues provide little direction as to the appropriate selection method. In lieu of constitutional or statutory guidance, the Prime Minister holds an essentially unfettered power of selection. The current fear, therefore, is that Harper will use his power to cast a blue shadow over Canada’s highest court for years to come. Of course, fear of partisan appointments is not new. In 2005, Irwin Cotler, the Liberal Minister of Justice under Paul Martin, launched a “Proposal to Reform the Supreme Court of Canada Appointment Process.” Naturally, the proposal came in response to Conservative calls for a more transparent process.

The proposal suggested a four-stage process. First, the Minister conducts consultations with key legal stakeholders (e.g. the Canadian Bar Association), and generates a list of candidates. Second, an advisory committee evaluates the candidates on “merit,” and shortens the list to three unranked candidates. Third, the Prime Minister advises the Cabinet of his selection. Fourth, the Minster appears before the Justice Committee to “explain the…professional and personal qualities of the appointee.”

The Conservative opposition rejected the proposal, contending that a greater level of parliamentary oversight was required. In fact, the Conservative Party went so far as to recommend that “[t]here must be Parliamentary ratification of the chosen nominee.” The Conservatives were essentially advocating for a more politicized, or “democratic” model of judicial appointment. After coming to power in 2006, Prime Minister Harper was quickly faced with the task of appointing a new Supreme Court Justice. In an apparent act of bipartisanship, Harper nominated Justice Rothstein from the short list of candidates put together by the previous Liberal government. Before the appointment was made official, however, Rothstein was subjected to a highly experimental, pseudo-parliamentary interview on national television.

The event, refereed by Canada’s leading constitutional expert Peter Hogg, was reminiscent of the public interview process used to make appointments to the South African Constitutional Court, as well as the “confirmation hearings” used to make federal appointments in the United States. The interview went smoothly enough, thanks in part to softball questions from the committee. Nonetheless, critics condemned the process as overly political, noting that any form of public questioning will operate effectively as a pseudo-election, and will have the inevitable effect of impairing judicial independence. Two years later, Harper appointed Justice Cromwell without any sign of the public vetting process he had so adamantly promoted.

As Harper gets set to handpick a Supreme Court majority over the next four years, it appears as though his push for transparency has subsided. Merit alone, he says, will guide his decision. Undoubtedly, critics will holler hypocrisy. The reality, however, is that the process works. Both domestically and abroad, the Supreme Court of Canada enjoys an immaculate reputation, heralded as a model for judicial reasoning and institutional independence. As noted by Chief Justice McLachlin in an interview with TVO’s Steve Paikin, “I think out process is working pretty well.”

To those who credit Harper’s cutthroat tactics with reigniting partisan politics in Canada, it should be made clear that his first two appointees (Rothstein and Cromwell) are widely regarded as moderate, meritorious and thoroughly nonpartisan. There is no guarantee that this trend will continue, however, especially with the support of his first majority.

The question, of course, is not simply whether or not Harper will opt for a Conservative-minded judge. There are other important questions to consider. Will he appease the New Democrats and nominate a bilingual candidate? Will he uphold Canada’s commitment to gender equality on the Bench? Will he select a racial minority? Will the nominee be a judge or a litigator? It appears as though these questions will be answered by the end of the summer. In the meantime, let the speculation begin.