Politics·Analysis

Parliamentarians set to grill Canada's newest top court pick — but don't expect fireworks

Parliamentarians will get their chance to question Justin Trudeau's new pick for Canada's top court Thursday. But it's mostly for show.

It's a Q&A session, not a confirmation hearing. It's not likely to get nasty

Nicholas Kasirer, the Quebec Court of Appeal judge who is Justin Trudeau's latest pick for the Supreme Court of Canada, will answer questions from parliamentarians in Ottawa on Thursday. (Michel Caron/Université de Sherbrooke)

It won't garner the sort of wall-to-wall coverage Robert Mueller's congressional testimony got — or even a hint of the emotion and controversy surrounding Brett Kavanaugh's confirmation hearing for the U.S. Supreme Court — but parliamentarians in Ottawa will hold their own big-deal hearing on Thursday, putting questions to the country's next Supreme Court justice.

Nicholas Kasirer, the Quebec Court of Appeal judge who was nominated to the top court on July 10, will appear before a special meeting of the House of Commons Justice Committee for a moderated 'Q&A' session. Members of the Senate, Bloc Québécois, Green Party and the People's Party of Canada will also be in attendance.

Past experience suggests that the event will be more collegial than confrontational.

Sheilah Martin, the last Supreme Court appointee to go through the process in Dec. 2017, fielded a series of softballs about her experiences on the bench and views on Canadian legal traditions.

Anything that could touch on matters that might come before the country's top court was declared off-limits. She did, however, manage to charm the room with jokes about her seven kids and her desire to be remembered for her listening skills, deep thoughts and "really nice hair."

In Oct. 2016, Malcolm Rowe — the first Newfoundlander to be appointed to the Supreme Court — got a slightly rougher ride about his less-than-perfect French, as well as being white and male, but he was able to make a case that being the son of a fisherman from a small outport village was also a type of diversity.

Reports out of Ottawa suggest that Kasirer might face queries about his views on systemic inequality, sexual-assault training for judges and French education rights.

But should MPs and senators want to dig deeper, they'll have plenty of information to draw upon. Kasirer's application for a seat on the Supreme Court outlines everything from his language skills to education to work experience — 20 years teaching law at McGill University before his 2009 appointment to the bench — and lays out his reasons for seeking the job.

"I sense that Canadians want judges who are modest of temperament and who, in proposing themselves for public service, see their most significant contribution to the law lying ahead of them rather more than as a trophy on an office shelf," he writes.

His application also provides a breakdown of his record on the Quebec Court of Appeal: more than 2,000 judgments and decisions, 132 applications for review by the Supreme Court, and 15 hearings granted. Ten of Kasirer's decisions have been upheld by the top court, three were overturned, and two judgments are still pending.

Still, since Marshall Rothstein became the first Supreme Court nominee to face parliamentary scrutiny in 2006, the hearings have produced few memorable moments. And the closest they've come to unearthing controversy was in 2013, when Marc Nadon erroneously told the committee that he had been drafted by the Detroit Red Wings.

(After Nadon's nomination was quashed on the unrelated grounds that he didn't meet the Quebec-specific criteria for seat on the top court, Prime Minister Stephen Harper bypassed the hearings for his next three picks. They resumed under a new Supreme Court appointment process introduced by the current Liberal government.)

Carissima Mathen, a law professor at the University of Ottawa who follows the court closely, said that the hearings mostly serve to introduce the nominee to the public, rather than illuminate the issues.

"I don't think that there's an important question that you could ask Kasirer where he would be free to respond in a way that is useful," she said. "To me, the real meat of the candidates is in the applications that they fill in."

But Emmett Macfarlane, a University of Waterloo political scientist who tracks how the Supreme Court shapes public policy, said there is some value in the Q&A process.

"This may not be a particularly sexy exercise from the public's point of view," he said, "but it can be as useful as the parliamentarians make it.

"These appointees become part of a group of nine people who wield a great deal of power in this country."

The MPs and senators may choose to hold a vote on Kasirer's nomination, but it wouldn't be binding. In Canada, the appointment of a Supreme Court justice is made by the Governor General on the advice of the prime minister alone.

About the Author

Jonathon Gatehouse

CBC Investigative Journalist

Jonathon Gatehouse has covered news and politics at home and abroad, reporting from dozens of countries. He has also written extensively about sports, covering seven Olympic Games and authoring a best-selling book on the business of pro-hockey. He works for the national investigative unit in Toronto.

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