On Friday, November 2, 2018, judicial appointments for the provinces of Saskatchewan, Ontario, and Newfoundland were announced.  There was no pomp or hype preceding the announcements, there was no loud or hostile opposition to the appointees, and the vetting process occurred behind closed doors.  The only reason you heard about the most recent judicial appointments is likely due to the fact that you subscribe to a mailing list that distributes this information.  The majority of Canadian citizens are probably completely unaware that the composition of the judicial landscape has been altered in Saskatchewan, Ontario, and Newfoundland. 

Compare this to the most recent appointment to the Supreme Court of the United States.   

Brett Kavanaugh was nominated to serve as a judge on the Supreme Court of the United States.  Prior to his appointment, he faced several allegations of sexual assault.  These allegations, the debate over the accusers’ credibility, and Kavanaugh’s response to the allegations unpleasantly played out in real time before our eyes during his highly publicised and politicized job interview. 

I am often curious as to how high profile American cases and politics would play out in the Canadian legal context and milieu.  This curiosity was centre stage throughout the Kavanaugh circus hearings and has prompted this examination of whether or not Brett Kavanuagh would have been appointed as a judge in Canada. 

During the Kavanaugh hearings, the media and the public got wrapped, tangled, and tripped up in applying the “presumption of innocence” to Kavanaugh.  However, the presumption of innocence is a legal construct; a procedural court protection which operates solely within our courts of law to protect those who have been criminally charged from the powers of the state to deprive them of their liberties.  Kavanaugh had not been criminally charged with sexual assault and he was not on trial for a criminal offence.  As such, he was not owed the presumption of innocence.  Instead, he was applying for a job; a very important job with a profound amount of authority to effect and command change.  The particular job for which he was interviewing requires impeccable character and reputation.

Why is reputation of a potential judge of paramount importance?  At first glance it may seem unfair that an individual’s reputation – the community’s collective view of the individual which has been cultivated over time – could disqualify them from holding a particular form of employment when they have all of the credentials to be eligible for the position.  However, the reputation of the court rests on the reputation of those who comprise the court, and the legitimacy of the judicial system relies on the trust and confidence of the public. 

In the early 2000’s, the Institute for Research on Public Policy conducted a study which found that public support for the courts is not tied to the popularity of any one decision.  Instead, public approval of Canada’s courts is tied to the perceived integrity of the judicial process.  In other words, society’s faith in the judicial system is not principally the result of approval of the court’s decisions, but rather a result of faith in the judicial process.

The Supreme Court of Canada’s Chief Justice Richard Wagner addressed the importance of a reputable judiciary in his speech at the Official Welcome Ceremony for the New Chief Justice on February 5, 2018.  He poignantly stated that:    

“[Canadians] bring their disputes to this Court because they have faith in our justice system, and confidence they will get a fair hearing…  The outcomes of these disputes are life-altering! Thus, the importance of maintaining public confidence in the Justice system, because public confidence is the lynchpin of our democracy.  These issues are much too important for us not to ensure that the judiciary remains strong and independent.” [emphasis added]

Canada is a common law country, meaning that our court decisions are considered law.  Our courts have the authority to fill gaps where no statute exists and statutes that do exist only mean what the courts interpret them to mean.  Judges are not imbued with magic authority and their final determinations are not spells cast upon the public driving society to fall in line.  Instead, decisions of judges are respected and obeyed (for the most part) because society as a whole chooses to respect the authority of the judiciary.  This is rooted in a trust for the process, the people, and the system which produces legal decisions. 

If the reputation of a judge is compromised or falls into question, unease seeps into society’s trust of the judicial system and the law that is created therefrom.  As such, following a reputational shortfall, the inevitable distrust of the public is enough to disqualify an otherwise fully competent and qualified individual from serving as a judge.  This has been confirmed by the Supreme Court of Canada in the decision of Therrien c Quebec (Ministre de la justice), 2001 SCC 35

In the Therrien decision, a candidate for appointment to the Provincial Court of Quebec did not disclose his past criminal conviction and pardon to the selection committee.  Upon discovering his omission, the candidate’s judicial appointment was revoked.  It was determined that his willful omission of pertinent information sufficiently undermined public confidence in his integrity and rendered him incapable of performing the necessary duties of judicial office.  The Supreme Court clearly and unequivocally noted that judges occupy a unique position of trust that gives them an immense degree of power over the lives and liberty of the vulnerable individuals who appear before them.  The Supreme Court stated that:

“[t]he judge is the pillar of our entire justice system, and of the rights and freedoms which that system is designed to promote and protect… The public will demand virtually irreproachable conduct from anyone performing a judicial function.  What is demanded of them is something far above what is demanded from their fellow citizens.” 

Individuals with a prominent platform and the ability to influence large sectors of society must exercise caution when commenting on the correctness of judicial outcomes.  Political commentary, potentially vocalized to improve public image or ensure appropriate approval rating, can undermine the independence of the judiciary.  For example, Justice Minister Jody Wilson-Raybould and Prime Minister Justin Trudeau’s public comments and tweets condemning the verdict in the Gerald Stanley case had unfortunate side effects on the public’s view of the justice system; will judges make future determinations based on how that final decision will be acknowledged by powerful politicians?  The commentary from high-profile politicians on the Gerald Stanley verdict undeniably sent the message to the public that the jury reached the incorrect conclusion and impacted the public’s confidence in the justice system.

Returning to the original question which prompted this blog – What would Canada have done with Brett Kavanaugh had the Prime Minister suggested his name for nomination to the Supreme Court?  Given the concerns raised in regard to his character, along with his soiled reputation, he would not meet the Canadian judicial standard of the irreproachable individual of unimpeachable integrity.  In Canada, he would simply be Brett Kavanaugh, not the Honourable Justice Kavanaugh.

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