The Caretaker Convention and the Appointment of Supreme Court Justices During Elections: 2015 vs 2019


The Caretaker Array in Star Trek: Voyager

Prime Minister Appoints New Justice to the Supreme Court During the Election

On 24 April 2015, Marshall Rothstein announced that he would retire as a justice of the Supreme Court of Canada on 31 August 2015.[1] On 27 July 2015, an Order-in-Council advised that Russell S. Brown be appointed as a Puisne Judge of the Supreme Court of Canada, effective 31 August 2015.[2] Since Prime Minister Harper opted for a long writ in 2015 of 78 days from 2 August to 19 October 2019, Russell Brown’s appointment ended up happening during the writ for the 42nd general election.[3] If Prime Minister Harper had opted for the minimum writ of 36 days, then Brown would have taken up his appointment before the writ. In any case, however, Prime Minister Harper must have known by 27 July that he would have advised the Governor General to dissolve parliament only a few days later. Nevertheless, the announcement did not become a big news story until a few days later, though Maclean’s mused that he might be conservative.[4]

After the election began on 2 August, some academics claimed that Harper’s appointment of a Supreme Court justice during the election violated the Caretaker Convention. For instance, Michael Plaxton, Professor of Law at the University of Saskatchewan, wrote a blog entry gently questioning the propriety of the decision and eventually converted the argument into a journal article in the Supreme Court Law Review.[5] On 5 October 2015, Plaxton joined Carissima Mathen, a Professor of Law at the University of Ottawa, in accusing Harper of having breached the Caretaker Convention:

While the Prime Minister has not openly defied the courts, he is clearly happy to test the limits of what the Constitution permits him to do. Consider the most recent appointment to the Supreme Court. Justice Russell Brown is a perfectly qualified candidate. But in announcing Brown’s appointment immediately before advising the Governor General to dissolve Parliament, it seems that Harper intended to circumvent the caretaker convention, which ordinarily precludes making non-urgent appointments during a writ period. It was always unlikely that anyone would challenge this move in court, especially since, win or lose, a judge could not nullify the appointment. Moreover, Harper could always seek political cover behind the claim that the convention simply has nothing to say about appointments so long as they are announced before dissolution. But he has pushed up against the limits of a constitutional rule designed to safeguard political accountability.[6]

Prime Minister Appoints New Justice to the Supreme Court During the Election

On 15 April 2019, Clement Gascon announced that he would retire as a justice of the Supreme Court of Canada on 15 September 2019.[7] On 10 July 2019, Prime Minister Trudeau announced that the Government of Canada would nominate Nicholas Kasirer to the Supreme Court of Canada. The news coverage focussed mainly on the fact that three of the nine justices of the Supreme Court of Canada must come from Quebec in order to take Quebec’s distinct civil law, and Canada’s bijuridicialism, into account, and that the Trudeau government had consulted with the Government of Quebec in making the selection.[8] The Trudeau government set up the Independent Advisory Board for Supreme Court of Canada Judicial Appointments for Quebec Seats, which consists of eight bilingual members and provides “non-binding merit-based recommendations to the Prime Minister.”[9] Trudeau had nominated Kasirer on its recommendation.

On 4 August 2019, an Order-in-Council advised that Nicholas P. Kasirer be appointed a Puisne Judge of the Supreme Court of Canada, effective 16 September 2019.[10] The Governor General dissolved the 42nd Parliament on Prime Minister Trudeau’s advice on 11 September, which means that Justice Kasirer took up his appointment during the writ for the 43rd general election. The Parliament amended the Canada Elections Act to provide for both a minimum writ of 36 days and a maximum writ of 50 days, and the fixed-date election provision of the same statute had scheduled polling day for 21 October 2019. Parliament therefore had to be dissolved between 1 and 15 September 2019, inclusive, which means that Justice Kasirer’s appointment on 16 September would always necessarily have entered into force during the writ.

However, in this case, Kasirer’s appointment during the writ has passed by without notice and has thus far not resulted in any reflection on whether Prime Minister Trudeau breached the Caretaker Convention. The Canadian Bar Association also reported on the announcement back in July in its newsletter and quoted one of their own past national presidents, Eugene Meehan, now working in private practice in Ottawa. Meehan said:

“This is a busy court. It’s a smart thing for the prime minister to appoint a new judge mid-summer instead of the fall, close to when the court starts its new hearing session on September 25th.”[11]

Granted, Meehan could not have known in July that Kasirer’s appointment would not have become operative until 16 September 2019 during the writ, but he did not even mention that the new hearing session which begins on 25 September takes place during the writ as well and that therefore the appointment should take place before the writ. Writing on 13 August 2019, the blog of the Faculty of Law at the University of Calgary also made no mention of the fact that Justice Kasirer’s appointment would become operative during the writ and that this might in some way touch upon the Caretaker Convention.[12] The Toronto Star also made no mention of the Caretaker Convention even though it mentioned the federal election, saying on 7 August only:

Kasirer will replace Justice Clement Gascon, who announced in April that he would retire from the high court on Sept. 15. That date coincides with the latest date Prime Minister Justin Trudeau can call the federal election, launching the campaign period before voting day Oct. 21.[13]

This election year, Trudeau’s appointment of a justice to the Supreme Court during the writ merited merely a couple of tweets rather than three articles on Plaxton’s part. They sound somehow less passionate and lack the forcefulness of their predecessor from 2015 . Perhaps the novelty has merely worn off.

Conclusion 

Prime Minister Harper in 2015 and Prime Minister Trudeau in 2019 announced appointments to the Supreme Court of Canada a few weeks before the writs which would become effective during the writs. Yet the reactions seem to have been different. Perhaps this is because Trudeau decided to establish a new advisory process, made several announcements about that, and generated some good will. Perhaps it is also because Harper’s announcement came only a few days before the long writ, whereas Trudeau’s formal appointment occurred one month in advance of the writ. But in both cases, the appointments themselves took effect during the writ. I invite you to draw your own conclusions on what might account for all these differences in media coverage and reactions from academics.

And we should not absolve the judiciary of all responsibility here either. Justices of the Supreme Court of Canada should not announce their intention to retire from the bench in the April of an election year only six months before the fixed-date elections scheduled for October of the same year. They should certainly not announce that they expect to retire on specific days from late August to mid-September, very close to the dissolution necessary to meet the polling day in October. They should plan their retirements where possible — especially non-mandatory retirements below the age of 75 — for non-election years instead. This would avoid politicising the court and putting the executive in an untenable position.

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Notes

[1] CBC News, Supreme Court Justice Marshall Rothstein To Retire At End of Summer,” 24 April 2015.

[2] Canada, Privy Council Office, Order-in-Council 2015-1127, 27 July 2015.

[3] Parliament of Canada, ParlInfo, “41st Parliament,” and “42nd Parliament,” accessed 27 September 2019.

[4] CBC News, Justice Russell Brown of Alberta Named to Supreme Court,” 27 July 2015; Jason Markusoff, “How Conservative Is New Supreme Court Justice Russell Brown?” Maclean’s, 28 July 2015.

[5] Michael Plaxton, “The Caretaker Convention and Supreme Court Appointments,” Supreme Court Law Review 72, no. 2d (2016)

[6] Carissima Mathen and Michael Plaxton, “The Harper Government Hasn’t Leashed the Judiciary, or Politicized It. So Why Is the Legal Profession So Uneasy?,” Policy Options, 5 October 2015.

[7] Peter Zimonjic, “Supreme Court Justice Gascon Retires – And Government Wants His Replacement Named Before Election,” CBC News, 15 April 2019.

[8] Brian Platt, “In His Third Supreme Court of Canada Appointment, Trudeau Names Quebec Judge Nicholas Kasirer,National Post, 10 July 2019; Global News, “Justin Trudeau Nominates Quebec Judge Nicholas Kasirer to Supreme Court of Canada,” 10 July 2019.

[9] Office of the Commissioner for Federal Judicial Affairs Canada, “The Independent Advisory Board for Supreme Court of Canada Judicial Appointments for Quebec Seats,” 15 May 2019.

[10] Canada, Privy Council Office, Order-in-Council 2019-1191, 4 August 2019.

[11] Dale Smith, “Trudeau Names Nicholas Kasirer to the SCC,” Canadian Bar Association National Magazine, 11 July 2019.

[12] Kristin McDonald, “The Appointment of Supreme Court Justice Nicholas Kasirer,” Blog of the Faculty of Law of the University of Calgary, 13 August 2019.

[13] Toronto Star, Kasirer to Begin Tenure as Supreme Court Justice in September,” 7 August 2019.

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5 Responses to The Caretaker Convention and the Appointment of Supreme Court Justices During Elections: 2015 vs 2019

  1. Rand Dyck says:

    Hi James,

    Of course I apply an ideological slant to just about everything, but as I told you in person, I think the difference relates to the very clear ideological position of Russell Brown!

    I had a great time talking with you and Sarah.

    THANK YOU!

    Rand
    ________________________________

    Like

  2. ro calvin says:

    Excellent aritlcle exposing the hypocrisy of the ‘learned’ academics and the press…T2 contunues as the emporer sans clothes.

    Like

  3. A very strong concluding recommendation! Not unlike the Speaker of the British House of Commons in recent times.

    As for the acceptability of appointments that take effect during the writ period, I think the key consideration should be whether Parliament will have had an opportunity to scrutinize the appointment. The effective date is part and parcel of the appointment for which the government will be held to account. True, the caretaker convention does not kick in until dissolution, but concerns about ministerial accountability that undergird the convention would still seem to apply if Parliament is unable conduct its scrutiny function.

    Like

  4. tiny typo puise s/r puisne
    appointed as a Puise Judge of the Supreme Court of Canada, effective 31 August 2015

    you can fix it fast – no one will know

    Like

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