WAGNER J In, DESCHAMPS J Out—A New Appointment to the Supreme Court of Canada

On 2 October 2012, Prime Minister Stephen Harper announced that he was nominating Justice Richard Wagner of the Quebec Court of Appeal to the Supreme Court of Canada (SCC). Justice Wagner will replace Justice Marie Deschamps, who recently disclosed her intention to retire.

Justice Deschamps’ departure plans triggered the formation of a parliamentary selection committee charged with vetting candidates for the open seat on the bench. This process was first used during the appointment of Justice Rothstein in 2006. It was subsequently relied upon when Justices Karakatsanis and Moldaver were appointed in 2011. The latest appointment offered the selection panel the opportunity to scrutinize the gender balance on the SCC, namely the replacement of a woman with a man would leave only three female justices remaining on the bench.

A New Justice

Hailing from Montreal, Justice Wagner has spent the bulk of his legal career (from 1980 to 2004) litigating commercial and professional liability matters as a partner of the law firm, Lavery, de Billy. While building his reputation as a top Montreal civil litigator, Justice Wagner also sat on several committees of the Canadian Bar Association (CBA), the Bar of Montreal, and the Barreau du Québec (BQ).

Justice Wagner was appointed to the Superior Court of Québec for the district of Montreal in September 2004. He served in the Civil, Commercial, and Criminal divisions. In February 2011, Justice Wagner was appointed to the Court of Appeal of Québec. Less than two years later, he was nominated to the Supreme Court of Canada.

A New Selection Process

Before 2006, appointing a judge to the SCC was straightforward. The Prime Minister (PM) appointed a judge of his or her choice. In 2004, the Liberal government introduced the idea of subjecting the PM’s nominees to review by a committee comprising members of Parliament. The Conservative government then operationalized this concept with the appointment of Justice Rothstein in 2006. In February of that year, a panel of MPs from all sides—Conservatives, Liberals, and New Democrats—questioned Justice Rothstein about his record at a public meeting.  Professor Peter Hogg was present to introduce the hearing and comment on its constitutional import. Calling the inaugural sitting of the selection committee an “historic moment,” Professor Hogg sounded a note of optimism: “This committee has the opportunity to demonstrate that the Canadian virtues of civility and moderation can make an open and public process work.”

It is important to note that the selection committee, in contrast to the congressional process in the United States, does not have the power to stop a particular appointment. Rather, its role is limited to reviewing candidates for the position and then publically questioning the PM’s nominee. NDP MP Francoise Boivin signaled the committee’s understanding of this role in her introductory comments at Justice Wagner’s hearing: “We all know we are here to introduce you to Canada.”

Under this new process, the PM and Minister of Justice (MOJ) provide the committee with a list of candidates.  The committee then reviews the resumes, judgments, and publications of each candidate in consultation with the Chief Justice of Canada, the Attorney General of Quebec, the CBA, and the BQ. The committee also has the discretion to consult other legal organizations. Once all the candidates have been considered, the committee creates a short-list of three. The PM and MOJ then select their nominee from this short-list.

A New Court

The PM’s decision to select Justice Wagner will reduce the number of women on the SCC bench to three. The issue of optimal gender balance became central during deliberations of the committee charged with questioning Justice Wagner.  In another jab, Ms. Boivin brought this issue to the fore: “The only criticisms? Well, you’re not a woman and I can’t blame you for that.” Even Justice Deschamps has weighed in, arguing in a CBC interview that the SCC should always have at least four female justices.

However, the PM has two upcoming opportunities to add another woman to the SCC bench: Justice Fish will retire in 2013 and Justice LeBel will reach the mandatory retirement mark in 2014.

A New Political Dynamic?

The PM’s future decisions on appointments will certainly shape the SCC for many years to come, but they may also test the boundaries of the new parliamentary committee selection process. If the PM does not signal an intention to restore the gender balance of the court, either expressly or in future candidate lists, it will be interesting to see how, if at all, the committee approaches the issue in its candidate review and nominee questioning capacities. Will the committee consider gender-balance while creating the short-list and questioning the nominee? Will its members become more openly partisan? Will the developing tradition of polite deference to the PM’s choice continue? As with the makeup of the SCC bench itself, only future appointments will tell.