More women, Indigenous and minority judges could find themselves on the Supreme Court if the government took a longer view of filling spots instead of scrambling to fill vacancies, says former prime minister Kim Campbell.
Campbell headed the advisory body that led to Quebec judge Nicholas Kasirer’s being nominated to succeed Justice Clement Gascon. Her group crafted a short list of Supreme Court for the government to consider.
She and Justice Minister David Lametti talked about the nomination process before Kasirer faced MPs and senators for formal questioning on Thursday.
Among the 12 applicants for the job opened by Gascon’s impending retirement, there was only one woman and none were Indigenous or self-identified as a minority, Campbell told the House of Commons justice committee Thursday.
Campbell suggested that rather than opening applications whenever a vacancy pops up — even retirements that come with six months of notice, as Gascon’s has — federal officials could have ongoing talks with the judiciary and the wider legal community about the needs of the Supreme Court to encourage more people to apply, particularly women and minorities.
“If this were an ongoing conversation as opposed to something that we scramble to do just in the face of an imminent departure from the court and the need to recruit a new candidate, I think this might be something that could broaden the scope of the candidates,” Canada’s first female justice minister and only female prime minister so far said by video conference from B.C.
Kasirer’s name was on the short list the advisory committee provided to the government. Ultimately, Prime Minister Justin Trudeau selected Kasirer from the Quebec Court of Appeal at the end of the confidential nomination process.
Anyone involved in the process signed confidentiality agreements to make sure names didn’t become public like they did earlier this year, Lametti told parliamentarians.
The Canadian Press and CTV reported in March that former justice minister Jody Wilson-Raybould recommended Glenn Joyal, chief justice of Manitoba’s Court of Queen’s Bench, be appointed Supreme Court chief justice the last time there was a vacancy. That was caused by the retirement of chief justice Beverley McLachlin.
Trudeau disagreed: he elevated Justice Richard Wagner, already on the court, to replace McLachlin, and named Justice Sheilah Martin from Alberta to fill Wagner’s spot.
Colouring the leaks was Jody Wilson-Raybould’s public testimony that she felt improperly pressured last fall to stop the criminal prosecution of engineering giant SNC-Lavalin, and her belief she was moved out of the justice portfolio because of her refusal to do so.
“The disclosure of confidential information regarding candidates for judicial appointments is unacceptable and I want to stress that I took strict measures to ensure that confidentiality was respected,” Lametti said in his opening remarks to the committee.
Lametti said he still doesn’t know where the leaks about Joyal came from, but he limited the number of people who had access to the relevant information this time and even ordered the server holding data about the nomination process isolated from the rest of the Justice Department.
Campbell said her advisory board of eight, mostly professors and senior lawyers, would even try to go for dinner in places where no one would know them or have an inkling why they were together.
At the end of the meeting, deputy Conservative leader Lisa Raitt tried unsuccessfully to get the justice committee to investigate the Joyal leak, with the vote on her motion splitting along partisan lines.
During his afternoon question-and-answer session with federal politicians, Kasirer largely avoided going into details on legal issues that might land before the high court, including minority-language rights and the use of the Charter’s notwithstanding clause — both issues in his home province of Quebec.
Instead, over more than two hours, he broadly talked about the role of judges — they should be restrained in their work, he said — how he views the law, some of his previous law articles, and how judges interact with legislatures and Parliament.
“Judges don’t enact laws — it’s what you do,” Kasirer said in one response to one question, variations of which were asked more than once.
“Parliament listens to what the Supreme Court and other courts say and, naturally enough, it’s the job of judges to apply the law that Parliament enacts,” he said.
Kasirer has served on the Quebec Court of Appeal for a decade and is an expert in civil law. He also spent 20 years as a professor of law at McGill University, including as dean of the law faculty.
Jordan Press, The Canadian Press