Unwritten Principles and Quebec Secession / Judicial Appointment
In the first part of the seminar, we will look at the unwritten principles and the issue of Quebec secession.
Both are discussed here: Reference re Secession of Quebec, [1998] 2 S.C.R. 217.
Professor Emeritus Mullan of Queen's University delivered the 2002 Rand lecture. His lecture, on the unwritten principles, was entitled "Underlying Constitutional Principles: The Legacy of Justice Rand". It is a comprehensive and excellent analysis of the development of unwritten constitutional principles in Canadian constitutional law and is a strong defence of this development. It can be found here.
Here is another article on this topic. It adopts an entirely different position. It is also excellent. It is Professor Jamie Cameron's, "The Written Word and the Constitution's 'Vital Unstated Assumptions'". The paper is going to be published in a book, Essays in Honour of Gérald-A. Beaudoin. The article can be found here (Word) and here (HTML).In this class, we will examine the recent unwritten principles constitutional jurisprudence. Among other things, we will be debating and discussing these propositions:
(1) "The unwritten constitutional principles jurisprudence is a welcome development in Canadian constitutional law."
(2) Conduct a legal analysis of the following scenario: 53% yes vote in Quebec in favour of separation, Quebec introduces a separation Bill. What then ensues? What challenges? What legal tactics and proceedings might eventuate? Consider, among other things, how the Clarity Act, S.C. 2000, c. 26, might work.
For the current status of unwritten principles, consider the following:
Babcock v. Canada (Attorney General), [2002] 3 S.C.R. 3.
British Columbia v. Imperial Tobacco Canada Ltd., [2005] 2 S.C.R. 473.British Columbia (Attorney General) v. Christie, 2007 SCC 21.
In the second half of the class, we will be looking at the issue of judicial appointment.
So far in the course, we've looked at decisions authored by the judges. In the seminars, some have raised questions about the role of those judges. Now let's look at the judges themselves. Should the current system of appointing s. 96 judges (e.g., Justice of the Ontario Superior Court of Justice, the Ontario Court of Appeal, the Federal Court of Canada and the Federal Court of Appeal) be reformed?Examine this in light of three issues:
1. In the case of federal appointments, refer to the process for application to be a judge, administered by the Office of the Commissioner for Federal Judicial Affairs . This includes general information about the federal appointments process, the considerations for appointment, the judicial appointment committees that vet the applications, and the application form filled out by candidates for a federal judicial appointment . Do you agree with the process? Do you agree with the criteria used by the committees? Does the application form capture the sort of information that you think is relevant? What changes might you make to the form?
2. Consider the appointment system for Justices of the Ontario Court of Justice (i.e. , provincially-appointed justices). The application form is here . Is is better than the one in the federal system? Is the Ontario system superior? Here is the appointment system:
Courts of Justice Act, R.S.O. 1990, c. C.43, as amended, ss. 42-43:
Appointment of provincial judges
42.(1) The Lieutenant
Governor in Council, on the recommendation of the Attorney
General, may appoint such provincial judges as are considered
necessary.
Qualification
(2) No person shall be
appointed as a provincial judge unless he or she has been a
member
of the bar
of one of the provinces or territories of Canada for at least ten years
or, for an
aggregate of at least ten years,
has been a member of such a bar or served as a judge
anywhere in Canada after being a
member of such a bar.
. . . . .
Judicial Appointments Advisory Committee
43.(1) A committee known
as the Judicial Appointments Advisory Committee in English
and as Comite
consultatif sur les nominations à la magistrature in French is
established.
Composition
(2) The Committee is composed of,
(a)two
provincial judges, appointed by the Chief Judge of the Provincial
Division;
(b)three lawyers, one appointed by The Law Society of Upper Canada, one
by the
Canadian Bar
Association--Ontario and one by the County and District Law
Presidents' Association;
(c)seven persons who are neither judges nor lawyers, appointed by the
Attorney
General;
(d)a member of the Judicial Council, appointed by it.
Criteria
(3) In the
appointment of members under clauses (2) (b) and (c), the importance
of
reflecting, in the
composition of the Committee as a whole, Ontario's linguistic duality
and the
diversity of its population
and ensuring overall gender balance shall be recognized.
Term of office
(4) The members hold office for three-year terms and may be reappointed.
Staggered terms
(5) Despite subsection
(4), the following applies to the first appointments made under
subsection (2):
1. One of the provincial judges holds office for a two-year term.
2. The lawyer appointed by the Canadian Bar
Association--Ontario holds office
for a two-year term and the lawyer appointed by the County and District
Law
Presidents' Association holds office for a one-year term.
3. Two of the persons who are neither judges nor
lawyers hold office for
two-year terms and two hold office for one-year terms.
Chair
(6) The Attorney
General shall designate one of the members to chair the Committee for
a
three-year term.
Term of office
(7) The same person may serve as chair for two or more terms.
Function
(8) The function of the
Committee is to make recommendations to the Attorney General for
the
appointment of provincial judges.
Manner of operating
(9) The Committee shall perform its function in the following manner:
1. When a judicial vacancy occurs and the Attorney
General asks the
Committee to make a recommendation, it shall advertise the vacancy and
review all
applications.
2. For every judicial vacancy with respect to which a
recommendation is
requested, the Committee shall give the Attorney General a ranked list
of at least
two candidates whom it recommends, with brief supporting reasons.
3. The Committee shall conduct the advertising and
review process in
accordance with criteria established by the Committee, including
assessment of the
professional excellence, community awareness and personal
characteristics of
candidates and recognition of the desirability of reflecting the
diversity of Ontario
society in judicial appointments.
4. The Committee may make recommendations from among
candidates
interviewed within the preceding year, if there is not enough time for a
fresh
advertising and review process.
Qualification
(10) A
candidate shall not be considered by the Committee unless he or she has
been a
member of the
bar of one of the provinces or territories of Canada for at least ten
years or, for
an aggregate of
at least ten years, has been a member of such a bar or served as a
judge
anywhere in
Canada after being a member of such a bar.
Recommendation by Attorney General
(11)
The Attorney General shall recommend to the Lieutenant Governor in
Council for
appointment to
fill a judicial vacancy only a candidate who has been recommended for
that
vacancy by the
Committee under this section.
Rejection of list
(12)
The Attorney General may reject the Committee's recommendations and
require it to
provide a fresh
list.
Annual report
(13) The Committee shall submit to the Attorney General an annual report of its activities.
Tabling
(14)
The Attorney General shall submit the annual report to the Lieutenant
Governor in
Council and
shall then table the report in the Assembly. 1994, c. 12, s. 16.
For more information on the Ontario system, check out the web page of the Ontario Judicial Advisory Appointments Committee.
3. How are Supreme Court judges appointed? On what criteria? Should the appointment process be reformed? Do we need more openness in the method of appointment? If so, are there any other acceptable methods of ensuring greater openness in the appointment process? Do we want U.S.-style confirmation hearings?