Hon. Serge Joyal:
Honourable senators, last week, media reports based on an unidentified leak described confidential conversations that allegedly took place between the Prime Minister himself and the former Minister of Justice, the Honourable Jody Wilson-Raybould, regarding the appointment of a judge from Western Canada to fill that region’s vacant seat on the Supreme Court. The conversations also concerned the appointment of a new Chief Justice of the Supreme Court to replace the Right Honourable Beverley McLachlin.
This is an extraordinary breach of confidentiality regarding the process of appointing justices to the benches of the highest court of the land. It should be investigated immediately by the most able forces of the RCMP so that the source of the leak can be quickly identified and that corrective measures can be put in place as soon as possible. To be clear, such a shocking leak is a breach of the oath of secrecy taken by those involved in the selection process of such nominations which are part of the process of consultation, appraisal and examination of the candidates for appointment to the bench. This is even more serious, honourable senators, than a violation of cabinet deliberations, since the consequences of that leak affect each and every Canadian.
The Supreme Court of Canada is the court of last appeal. It interprets the Constitution and the nation’s laws for all citizens. Its Chief Justice presides over the work of the Canadian Judicial Council that governs the ethics and conduct of the more than 1,100 federally appointed judges in Canada. Making public the exchanges on the selection of candidates for important judicial positions jeopardized the functioning of constitutional democracy in Canada and the guarantee that the rule of law is always served and protected.
There is an integral relationship between democracy, the independence of the courts and the rule of law. An impartial and independent judiciary guarantees that Canada remains a law-based society; it allows Canadians to have faith in their court system.
As the Supreme Court underlined in the decision of Valente in 1985:
The word “impartial” . . . connotes absence of bias, actual or perceived.
Later in the 1997 in the case of R v. S, the court added:
True impartiality. . . . requires that the judge be free to entertain and act upon different points of view with an open mind.
Chief Justice Richard Wagner properly recognized this judicial fundamental when he was sworn in in February 2018:
The importance of public confidence in the justice system. . . is the lynchpin of our democracy.
Such an inexcusable leak regarding the exchange of views in the selection process challenges the whole system of appointments at the highest level and the integrity of judges; it jeopardizes the trust of every Canadian in the judicial system in Canada. The Prime Minister must intervene immediately and launch a thorough investigation so that corrective measures be put in place to protect the democratic right of every Canadian to be heard by an independent and impartial court. To safeguard the rule of law demands nothing less.
Some Hon. Senators: Hear, hear.