Day 6

A leak exposed a judge's bid for the Supreme Court. A legal expert says that's dangerous

Anonymous sources say Prime Minister Justin Trudeau disagreed with former attorney general Jody Wilson Raybould in 2017 about who should be appointed to the Supreme Court of Canada. Law professor Emma Cunliffe says none of that information should have ever been made public.

'This is supposed to be a highly confidential process,' Emma Cunliffe says

Jody Wilson-Raybould has denied any conflict between her and the prime minister over Justice Glenn Joyal's suitability for a seat at the Supreme Court. (Sean Kilpatrick/Canadian Press)

When the Canadian Press reported on Monday, based on anonymous sources, that former Justice Minister Jody Wilson-Raybould and Prime Minister Justin Trudeau battled over the Supreme Court of Canada nomination of Justice Glenn Joyal, University of British Columbia law professor Emma Cunliffe was filled with "horror."

Cunliffe says that ensuring confidentiality in Supreme Court nominations is crucial to the selection process.

Sources told the Canadian Press that Joyal's views on Charter of Rights issues led to "significant disagreement" between the prime minister and his then-attorney general. Wilson-Raybould denied any conflict with Trudeau, and the prime minister condemned the leaks.

In a statement, Joyal said he withdrew his application due to his wife's illness.

Speaking with Day 6 host Brent Bambury, Cunliffe said none of those details should have ever been made public. Here's part of their conversation.

Why is it important that what happens during a Supreme Court application process is kept under lock and key?

I think there are two dimensions to why it's important. The first is that all Canadians have a deep interest in maximizing the pool of candidates for a position as important as one on the Supreme Court of Canada.

We want, as a community, to appoint the best possible candidates, so we want people to throw their hats in the ring. Some potential candidates are likely to be deterred if they're aware that the confidentiality of the process might get compromised.

Chief Justice Glenn Joyal of the Manitoba Court of Queen's Bench speaks to a reporter in Winnipeg in September 2012. (Steve Lambert/Canadian Press)

The second reason why I think it's really important to preserve the confidentiality of the process is because confidentiality in the appointments process is key to the constitutional value of judicial independence.

In Canada, we've been reasonably successful at avoiding the kind of hyper partisanship in judicial appointments that has marked the United States — and one of the reasons why we've been able to do that is because of the confidentiality of the process.

Can you tell us briefly how a judge gets appointed to the Supreme Court of Canada. How does it work?

The process begins with an application.

So, somebody who's interested in potentially being appointed fills out a very long form that includes examples of the judgments they've written before if they're a judge; maybe some of their academic writing if they've spent time in academia, and describes the personal background and the professional training that makes them equipped for the job.

Those applications are shared with a Judicial Advisory Committee, which is chaired by former Prime Minister Kim Campbell and on which various representatives of the community and the legal profession also sit.

That advisory board compiles a short list of candidates which it shares with the minister of justice and the prime minister.

Both the advisory board and the minister of justice conduct some examinations into potential candidates for the purpose of making a recommendation to the prime minister about who would be a suitable nominee.

But is this advisory board seen ever as being a political body?

I think it speaks volumes that Kim Campbell chairs it under a Liberal government. I think that there's been a conspicuous attempt to ensure that it is a bipartisan body which consists of very well respected lawyers and representatives of legal profession and with a pretty firm mandate to keep the appointments process non-partisan.

Prime Minster Justin Trudeau has condemned leaks to the media about a sensitive Supreme Court nomination process as the SNC-Lavalin controversy continues to rage. (Tijana Martin/Canadian Press)

So, you believe that this process is designed and is upheld as a process that's not partisan?

I believe that at its best it has been, yes. I would draw a distinction between politics and partisanship. The role of a Supreme Court of Canada judge is always inherently political and particularly so because of the Charter of Rights and Freedoms.

A large portion of the court's work is it is invited to rule on the constitutionality of government programs, government policies, new legislation and so inevitably its work is political.

I think where I would draw the line, though, is in the possibility that a judge is appointed because of their allegiance with a political faction or a political party or the perception that they'll rule in a particular way on a particular issue. 

But what would happen if a politician decided to upend all that by campaigning on the idea that they would only appoint judges in line with their own personal, political thinking or with the programs that they're putting forward when they're campaigning. Is there anything to prevent Canadian politics from turning this into a partisan issue?

There are constitutional conventions that aren't laws but that have been observed by all parties and all prime ministers. But there's no rule, per se, to prevent a politician from taking that step.

I think if it appeared that a prime minister was going in that direction, the legal community and probably Canadians at large would respond with outrage and would try to draw the process back to something more like what we normally see.

The risk that arises in the circumstances where the prime minister is playing politics with judicial appointments is that we see the kind of decline in legitimacy that we have seen in the U.S. Supreme Court around, for example, the confirmation of Brett Kavanaugh.

It would adversely impact Canadians' trust in the Supreme Court of Canada if they felt that appointments were partisan in those ways.

Well some say that the hyper partisanship in the United States is a bad thing, but when the personal past of a nominee, like Brett Kavanaugh's, is exposed to Americans, it's very relevant to some members of the public.

Shouldn't the public have the right to know those details about people being considered for such an important job, particularly when the term is so long?

I would make a distinction between the person who is the sole nominee, as Brett Kavanaugh was, and a person who has simply put their name in a ring. 

In respect of candidates, I think it is important that that kind of information come forward and get considered by the appointments process. And ideally, if the process is working well, such a person would be filtered out long before they became the sole candidate for the job. 

Former Prime Minister Kim Campbell chairs the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. (Jonathan Hayward/The Canadian Press)

Back to this leak of the information about Justice Glenn Joyal, you said that you were horrified when you heard about it but it sounds to many people like it's just standard fare Ottawa gossip. What makes this leak so different?

It's been interesting to me to see that commentary that suggests that this is just journalists doing their job. This is just Ottawa business as usual.

The difference is that the Supreme Court of Canada holds a unique constitutional place in our liberal democracy. They are the guardian of individual rights and freedoms. They are the government institution that is tasked with ensuring that not just the majority but the minority is protected in the way in which we govern ourselves as a community.

And it's that unique constitutional role that makes the process of appointment to that court so important, and that makes it so important that appointments are non-partisan because this court will have to rule on the policies of many parties over time.

This transcript has been edited for length and clarity. To hear the full interview with Emma Cunliffe, download our podcast or click 'Listen' at the top of this page.