Confirmation Hearings for Canadian Appeal Court Nominees

It is not every day that I have, respectfully, to disagree with the Chief Justice of the Supreme Court of Canada (SCC), but today is that day.

The Globe and Mail newspaper this morning quoted SCC Chief Justice Richard Wagner saying that he would like to see public nomination hearings for appeal court judges, much like the ones held for the SCC.  Such hearings for SCC nominees are largely a waste of time. Why expand an essentially useless and potentially harmful process?

Chief Justice Wagner was quoted as saying that explanations are necessary “Because people need and deserve the information. There is no reason we should not give it to them. We have nothing to hide.” I agree with those sentiments as far as they go, but all the relevant information can be provided in a printed bio or CV or by reading Wikipedia. The questions politicians really want answered have nothing to do with information. Rather, it is about the nominees’ views on politically controversial issues. Yet these views are almost never obtained on questioning.

Does it really help us to question a candidate about what law school they attended 30 years ago or what type of law they practiced or taught? Supreme Court of Canada judges have come from widely differing branches of law. Brian Dickson was an insurance company lawyer in Winnipeg before being appointed to the bench and became a highly successful SCC Chief Justice. Who would have expected that insurance company law would be a good qualification for deciding the numerous new Charter of Rights cases he was called upon to decide? Bertha Wilson was a research lawyer at a very large corporate law firm. Her appointment could have been questioned because she had no previous litigation experience appearing in court. Bora Laskin was a former law professor with a strong background in constitutional and administrative law but had no background in business law or court appearances. Chief Justice Wagner’s Montreal law practice centred on real estate, commercial litigation and professional liability insurance. Did that make him too conservative to have been appointed to the Québec Court of Appeal where he had to decide cases involving labour law and human rights? Obviously, he did a good job on that court because he was elevated to the SCC.

In reality people either grow into a difficult new job or they don’t. Judges are no exception. Whether someone appointed to the bench today will grow into the job successfully tomorrow is unpredictable. It depends not only on the information they will receive in hearings in the years to come, but also on the collegial and social attitudes they will absorb on the bench from other judges.  Experience on the bench and the strong influence of judicial colleagues often helps ordinary lawyers become extraordinary judges. Canada’s historical experience with judicial appointments has been largely positive, long before we started this public questioning process. I can’t see any benefit from this process.

In the US, where the confirmation process has been going on much longer and with much more heat than in Canada, there have commonly been remarkable surprises. Judges appointed by a conservative Congress have turned out to be much more liberal once on the bench, and vice versa, as they grew into the job and evolved from their previous worldviews.

If these hearings become politically partisan the name of the game is to defeat the appointment and thus to embarrass the political party nominating the judge; it is not about gathering of information. With someone who has already been a trial judge one can look at the previous decisions they wrote. I often read trial decisions that I could disagree with without my having read all the written the evidence or seen the demeanor of the witnesses. If I was asked to question a judge who wrote such a decision I am reasonably sure that the judge could defend the decision by saying “that’s how all the evidence appeared to me at the time”. I would have a hard time saying that that is not how the evidence should have appeared to that judge merely because that is not how I think with the advantage of hindsight it might have appeared to me. And judges are permitted to be wrong sometimes. That’s why we have the Court of Appeal.

A trial judge’s work is like a home plate umpire in a baseball game required to call the balls and strikes a second after the pitch crosses the plate. Trial judges have to make on the spot decisions about the admissibility of evidence and the fairness of questioning by the lawyers.  Any one of these decisions could look wrong with the advantage of video replays. Similarly, the judges have to decide which parts of the facts and which interpretations of the law to accept in the judgment. And then on to the next case tomorrow. Not an easy job.

Unless a trial judge is careless enough to make inappropriate comments during the course of a trial (such as one judge did by asking a complainant of sexual assault why she didn’t just keep her knees together) or to be obviously well off the mark in reviewing the evidence and applying the law, there is a wide range of acceptable judicial decisions in a substantial percentage of cases. I have sometimes won cases I thought I should lose and lost cases I thought I should win. But I rarely recommended appealing because the decision did not contain any “palpable and overriding error” – the criterion for overturning a trial decision on appeal. Asking questions about previous trial decisions during nomination hearings will in most cases provide no useful answers.

Asking someone for their views on a controversial topic like abortion will rarely provide useful answers. Any nominee with an ounce of common sense will never say “I am all in favour of abortion” or “I am opposed to abortion under any circumstances”. What they will say is something appropriately judicial like “I am fully aware of the Canadian law on abortion and it’s my job as a judge to apply that law to the facts of the case. It’s not my job to like or dislike the laws that Parliament has enacted.  The outcome of every case should depend on the facts of that case.” Is an answer like that really useful in revealing biases? Is it even good political theatre on television? And how long might it be before current biases are let go, to be replaced by future biases? We all grow and change.

The nomination questioning process now seems to be accepted in Canada. Although the Harper government used it in some cases and not in others, the Trudeau government appears more committed to it. It’s main benefit is to give some MPs media exposure.  However, after a few more nomination hearings demonstrate their lack of utility, or what may be worse, degenerate into partisan bickering, I hope that Canada will stop imitating the US system and rely on published biographies and the expert committee’s vetting of candidates.

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