Dear Sir or Madam,
Yesterday we outlined the structure of Canada’s court system. Today we move on to Canada’s highest judicial authority, the Supreme Court of Canada (SCC).
Sections 4-6 of the federal Supreme Court Act specify the composition of the SCC. The Governor in Council (the governor general, on advice from the Prime Minister’s Cabinet) appoints an individual who has been a judge of a provincial superior court—the Court of Queen’s Bench of Alberta or Supreme Court of British Columbia for example—or who has been a lawyer for at least ten years standing at the bar of any province. Three of the SCC judges must be from Quebec, which is likely to ensure that the SCC bench is sufficiently experienced with Quebec’s civil law system. It is also customary to include judges from across Canada’s geographical regions: three from Ontario, one from British Columbia, one from the Prairie provinces, and one from the Maritimes.
In August this year, Prime Minister (PM) Justin Trudeau announced a new nomination process for selecting SCC judges in an attempt to ensure that the process is “transparent, inclusive, and accountable.” Before the new selection process, the PM appointed SCC judges through a simpler but arguably less transparent process. Before August 2016, the Prime Minister’s Office could nominate any superior court judge or lawyer in accordance with the SCA and the Constitution Acts, 1867-1982. Customarily, this included conferring with provincial Attorneys General and with the Chief Justice of the SCC. Usually, this process resulted in a bench comprised of Justices with similar political and social values to the sitting government’s views. The nominees will probably continue to be politically aligned with sitting governments, but PM Trudeau’s intention is to demonstrate to the public that the nominees are selected for more than their political views.
The new Independent Advisory Board for Supreme Court of Canada Judicial Appointments, chaired by Rt. Hon. Kim Campbell, convened to “provide non-binding, merit-based recommendations” to the PM. By August 24, the Board had received 31 applications. It provided a short-list of 5 candidates to the PM, who nominated Hon. Malcolm Rowe. The Minister of Justice and Attorney General of Canada, Hon. Jody Wilson-Raybould, explained that the PM chose Rowe J. from the short-list “because of his legal and judicial acumen, public service background, ability to work in French, and ‘depth of understanding’ of Canada’s ‘diversity.’” It also helped that Rowe J. fills retiring Justice Thomas Cromwell’s Atlantic region seat. As a result of this more transparent process, the public can review Justice Rowe’s application questionnaire here.
On October 25, 24 parliamentarians convened in Ottawa in a new question-and-answer session to determine Justice Rowe’s proficiency in French, his attention to diversity in Canada, and his commitment to access to justice. Inquirers included the leaders of the NDP, Green Party, and Bloc Quebecois, senators (including Hon. Murray Sinclair, first Manitoba Indigenous judge and former chair of the Indian Residential Schools Truth and Reconciliation Commission), and other members of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs. You can view the question-and-answer session here.
Section 41 of the Constitution provides the standard procedure to amend the “composition of the Supreme Court of Canada”. It is the same as amending the office of the Queen or the Governor General and Lieutenants General of the provinces. In 2014, former PM Harper nominated Justice Marc Nadon from the Federal Court of Appeal, the Governor General appointed him, and he was sworn in according to the SCA.
Unfortunately, despite Nadon J.’s experience, expertise, and suitability to sit as puisne justice of the SCC, he was ineligible to be appointed. The SCC decided with a 6-1 majority in Reference re Supreme Court Act, ss. 5 and 6 that the correct interpretation of ss. 5 and 6 of the SCA excludes current judges of the Federal Court of Appeal from sitting on the SCC.
The Supreme Court Act does not state that a Military Court judge, a Tax Court judge, Federal Court judge, or a Federal Court of Appeal judge can be appointed to the SCC. Other sections in the act do refer to judges of the Tax Court, Federal Court, and Federal Court of Appeal, so it is unlikely to be an error in drafting.
The new process for selecting SCC judges does not change the ultimate appointment process, so it is not necessary to amend the SCA or the Constitution. It merely suggests appropriate candidates to the PM and, hopefully, would prevent an incident like that in 2014 because there are more experts reviewing the candidates.
 RSC, 1985, c S-26 [SCA].
 Justin Trudeau, Prime Minister of Canada, “New process for judicial appointments to the Supreme Court of Canada”, News (Ottawa: 2 August 2016), online: <pm.gc.ca/eng/news/2016/08/02/new-process-judicial-appointments-supreme-court-canada>.
 30 & 31 Victoria, c 3 (UK), s 41(d) [Constitution].
 “The Independent Advisory Board for Supreme Court of Canada Judicial Appointments”, Office of the Commissioner for Federal Judicial Affairs Canada (2 August 2016), online: <www.fja-cmf.gc.ca/scc-csc/index-eng.html>.
 Tonda Maccharles, “Supreme court nominee’s sex assault ruling no concern for Kim Campbell”, The Toronto Star, online: <https://www.thestar.com/news/canada/2016/10/24/supreme-court-nominees-sex-assault-ruling-no-concern-for-kim-campbell.html>.
 Constitution, supra note 3.
 Justice Thomas Cromwell, as quoted by Laura Stone and Sean Fine, “Nadon appointment rejected on technicality, Justice Cromwell says”, The Globe and Mail (Ottawa: 14 September 2014), online: <www.theglobeandmail.com/news/politics/nadon-appointment-rejected-on-technicality-justice-cromwell-says/article31891826/>. For more information see <www.cbc.ca/news/politics/marc-nadon-s-failed-journey-to-the-supreme-court-1.2636403>.
 2014 SCC 21,  1 SCR 433 at para 4.
 See, for example, SCA, s 30.