The top nominee for a seat in Canada’s highest court will face a public hearing this afternoon.
This is the first time in Canadian history that a judge has been subject to an open hearing before the nomination is finalized.
The move, by Prime Minister Stephen Harper’s Conservative government, to publicly question the potential Supreme Court justice has sparked controversy across the country.
The government has said the hearings will help to make the nomination process more open and accountable.
“I believe the public deserves to know more about the individuals appointed to serve (in the Supreme Court) and the method by which they are appointed,” said Harper in a recent release.
“A public hearing is an unprecedented step in this direction. It will bring more openness and accountability to the process of appointing people to our nation’s highest court.”
Some have serious concerns that the televised hearings could compromise the Supreme Court and its nine justices.
It could endanger the public view of a judge’s ability to make fair and impartial decisions, according to the Canadian Bar Association, a national group of 36,000 lawyers, teachers and students.
“Primarily we need to reinforce, in the Canadian public’s mind, that judicial decision-making is independent — independent from the judge’s personal views or beliefs,” said Canadian Bar Association president Brian Tabor from Halifax.
“To the extent that a judge’s personal views or beliefs are exposed, the concern is that, in a rendering of a future decision, the decision may be characterized as the expression of a personal view.
“As opposed to a decision rendered after they hear the arguments, after they listen to the parties with impartiality and integrity.”
The hearing also sends a dangerous symbolic message, said Tabor.
The courts must not only be independent, but also be perceived as a separate and trustworthy institution by Canadians.
“We have to be very vigilant around the important requirement to ensure that our judges are independent,” he said.
“To the extent that our judges are asked to answer questions posed by the legislature — the Parliament in this case — the concern is that it may create in the Canadian public’s mind that somehow this judge is beholden or accountable to Parliament.”
For the highest court in the land this could be problematic, he added.
The Supreme Court of Canada hears approximately 80 cases a year.
A significant number of these cases involve the federal government, he said.
“We need to be careful that we don’t create these perceptions and we have to be careful that perceptions don’t become Canada’s reality.”
The message from the Prime Minister’s Office is all systems go for the hearing this afternoon.
Scheduled to be three hours long, parliamentarians from all parties will have a chance to question top nominee, Marshall Rothstein.
The hearing will be broadcast on CTV, CPAC and CBC Newsworld in English and on Radio-Canada’s RDI in French.
Currently a judge for the Federal Court of Appeal, Rothstein is originally from Manitoba.
He was short-listed as a Supreme Court candidate under the previous Liberal government.
“The Supreme Court is a vital institution that belongs to all Canadians,” said Harper in a release.
“I am looking forward to watching the ad hoc committee’s work and listening to Mr. Rothstein’s answers.
“This hearing marks an unprecedented step towards the more open and accountable approach to nominations that Canadians deserve.”
Televising a question-and-answer session with a Supreme Court candidate is not the way to make the nomination process more open, however, said Tabor.
“From an open transparency piece we’ve had a coming together of a broad facet of individuals, in varying capacities, to look at these (candidates).”
The nomination process, which began last summer, involves the minister of Justice canvassing bar associations, attorneys general and members of provincial and territorial legislatures for five to eight candidates.
The names of these candidates are forwarded to a federal advisery committee comprised of parliamentarians, two members of the public, a retired judge, representatives from bar associations and attorneys general.
The committee narrows the list to three names, which are then presented to the prime minister.
A lesson learned is to better inform the public, said Tabor.
“I think where may be the failing is that all of us in the legal community … could have done a better job of letting the Canadian public know the details of the process,” said Tabor.
“You hear the word ‘secret,’ but that’s not really the case.”
Regardless of the results of today’s public hearing, the ultimate power to nominate a judge to the Supreme Court rests with the prime minister.
Federal Justice minister Vic Toews could not be reached for comment.