Last month, Prime Minister Mark Carney chose Glenn Joyal, the long-time Chief Justice of the Court of King’s Bench of Manitoba, for appointment to the Supreme Court of Canada.Sean Kilpatrick/The Canadian Press
If the purpose of holding public nomination hearings for new Supreme Court judges is to introduce them to Canadians and to bolster confidence in the quality of appointments, a stage-managed show just doesn’t cut it.
Last week, Glenn Joyal of Manitoba, Prime Minister Mark Carney’s first appointment to the Supreme Court of Canada, appeared before Parliamentarians to answer questions in a session broadcast for the public to watch. Prime ministers have been arranging for these hearings for 20 years now, with some breaks along the way.
Before then-prime minister Stephen Harper held the first such hearing, for Marshall Rothstein, also of Manitoba, in 2006, a substantial portion of the legal community said such hearings risked politicizing the judiciary, and becoming “circus-like,” a feature they smugly attribute to U.S. Senate committee hearings for new judges.
Mr. Harper was bold enough to break with tradition. But in good old Canadian style, he asked the late legal scholar Peter Hogg to moderate the hearing, and to spell out for the poor old Parliamentarians how to behave. (The same Mr. Hogg gave the nominee, Mr. Rothstein, a two-hour training session before the hearing; very little was left to chance.) In that hearing and subsequent ones, Mr. Harper gave Parliamentarians just three days or so, to prepare. The Liberal prime ministers who followed him, Justin Trudeau and Mr. Carney, did the same. In the United States, senators have five or six weeks to familiarize themselves with the nominee’s record, writings, social-media posts, speeches and so on. Unlike in the U.S., the Canadian process does not culminate in a vote.
Glenn Joyal introduces himself to legislators as Supreme Court appointment approaches
Mr. Joyal’s hearing last Monday began with moderator Anne Levesque, a law professor at the University of Ottawa, spelling out the no-go zones for Parliamentarians. Don’t ask about the judge’s rulings. Don’t ask about any issue that might come before the judge.
But then Conservative justice critic Larry Brock went where he was not supposed to go. First, eschewing the obligatory bowing and scraping, he said public confidence in the courts is at an all-time low. He mentioned Liberal bail policies, the Supreme Court’s gutting of mandatory minimum sentences and much else besides. Then, surely a very bad boy, he asked whether the Liberal government had got it wrong in introducing a new criminal law that gives judges wide discretion to go below mandatory minimum sentences. He also asked what Mr. Joyal thought about judges giving light sentences to avoid deportation orders.
And guess what? The lights didn’t go out at the hearing. The bones of the justice system stayed intact. And Mr. Joyal found a way to address the thrust of the questions, if not the entire substance. Any judge worthy of the Supreme Court should be adept at answering what they can of such questions. (Prof. Levesque, with a commendably light touch as moderator, did not unduly interfere.)
Supreme Court of Canada nominee Glenn Joyal delivers his opening remarks at the start of a question-and-answer session with members of Parliament in Ottawa on Monday, June 29.Adrian Wyld/The Canadian Press
What Mr. Brock was doing was speaking for the people – not all the people, of course, but the sizable numbers who feel the system is a mess. These people don’t want to be stage-managed. Maybe they do want a bit of a conflict, at times. So what? In conflict, character emerges.
And a picture did emerge of Mr. Joyal, who has been Chief Justice of Manitoba’s top trial court, the Court of Queen’s Bench, since 2011. He has some views generally associated with judicial conservatives – he has spoken about judges’ unfortunate “dominance” over legislators in the post-1982 era of the Charter of Rights and Freedoms – but also accepts the liberal orientation of the “living tree,” the notion that law evolves with the times.
Canadians also had a chance to see the person behind the robes – a true child of the West whose ancestors include, on his father’s side, a grandmother of Louis Riel, and on his mother’s side, homesteaders from Poland. He was humorous and self-deprecating, and his passion for justice in all its nuances was clear. But he is far from an apologist – “I don’t believe in defending stupid systems,” he said at one point.
Parliamentarians don’t need their hands held by a moderator; they don’t need a list of do’s and don’ts. A judge worthy of appointment doesn’t need to be protected. Nominees know what they can say. The Canadian style flows naturally from our legal and political traditions.
And why not end on a non-binding vote? Too impolite? The prime minister should end the stage management and let the show go on.