Supreme Court Appointments Transparency and Accountability April 12, 2014

The buzz surrounding the Supreme Court of Canada appointments continues with the CBC’s Leslie MacKinnon’s “Questions linger about secret panel”!/content/1.2607482.

Mixed between the individual views on confidentiality of the parliamentary process of such appointments, of former judicial appointment committee member, Francoise Boivin, are deeper views about the process including from constitutional authority, Adam Dodek,

The deeper views include the importance to the process, and need to reform in the area of “accountability” and “transparency.”

But a caution needs to be expressed here. “Accountability” and “transparency” are words that do express important public, government, law, and institutional values, whose significance should never be minimized. But it may be well to remember they are also words that, in government, and public and constitutional contexts can be a bit, well, to be frank, squishy.

So, plugged in alone, unmodified, in front of calls for reform of the complicated, numerous-governments-long struggling Canadian effort to come to a rational Supreme Court of Canada appointments process, the plain fact is “accountability” and “transparency” fall a good distance short of being prescriptive.

There is danger that in using these ideas in this context and presenting them as concepts which, if only adopted in some undefined measure, will immediately rescue a defective process, may create expectations that cannot be achieved.

It is nothing new to say that among the things that turns “accountability” soft and imprecise in this context have to include important completing principles and realities:

1. The legitimacy of the Supreme Court depends on public acceptance that its members are accomplished, dedicated, effective leaders in judicial decision-making. So part of the process of their appointment has to give the chance to expose that merit.

2. At the same time, the reality seems to be that appointments that are and have been made since anyone can remember fall almost uniformly into that category. In othe words, even without what everyone can agree has been an “open” and “transparent” process, the working result of government appointments has operated effectively to provide a supreme decision making authority that works well, through some pretty tough questions including hard ones like the Secession Reference, the now thirty years old process of the implementation of the Charter and thorny re-workings of important administrative and commercial law ideas.

The risk is that under the banners of accountability and transparency, undisciplined politicians in any revised appointment vetting process can damage the legitmacy of the process, the court and individual members of the court.

3. Confidentiality of deliberation has to be a part of any ultimately reformed process. (Contrary, with respect, to the current complaint of MP Francoise Boivin that she was required to surrender working materials when her work was done, it is very hard, to justify working papers which could be read to compromise some future opinion or motivation of a judge remaining in the hands of practising policiticians once their role in the appointments process is over.)

4. The democratic imperative that ultimate control of the appointment remains in the hands.

These are not matters that are capable of quick and easy fixes.

So here’s what we need. We need to soften the generalized approach we need a working constituency of not academics, reinforced by hard headed battle hardened lawyers, journalists and media experts, process experts and former politicians to prescribe competing models for the process. And we need a solid, principled, debate among them with the concrete formulation of a process.