MPs question Fraser, McTeer on Supreme Court appointment process

MPs on the House Justice Committee raised no objection to the prime minister's recent appointment of Glenn Joyal to the Supreme Court of Canada during a meeting held on June 29.

The committee called the meeting as part of a regular process of reviewing appointments to the Supreme Court. It became contentious at times, particularly when Conservative MP Roman Baber (York Centre, Ont.) pointed out previous occasions in which a Liberal government had appointed Liberal Party donors as judges, and then took issue with a question on the questionnaire for candidates for the Supreme Court job. But none of the MPs who participated in the meeting criticized Prime Minister Mark Carney’s (Nepean, Ont.) decision to choose Joyal to fill the vacancy created by the recent retirement of justice Sheilah Martin. 

Joyal was sucked into the spat between then-prime minister Justin Trudeau’s PMO and former justice minister Jody Wilson Raybould in 2019, when one or more sources told journalists Glen McGregor and Joan Bryden that Trudeau had objected to Wilson-Raybould’s suggestion that he nominate Joyal to the Supreme Court in 2017.

Joyal criticized the way in which judges had interpreted Sec. 7 of the Charter of Rights in a speech to the Canadian Constitution Foundation in 2017, when he was the chief justice of Manitoba’s top court, something which apparently displeased Trudeau.

Justice Minister and Attorney General Sean Fraser (Central Nova, N.S.) appeared before the House Justice Committee to discuss Joyal's appointment on June 29 alongside Marc Giroux, the commissioner for Federal Judicial Affairs, and Maureen McTeer, who chairs the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. McTeer’s advisory board recommended that Carney choose either Joyal or one other unnamed candidate to fill the vacancy on the Supreme Court. McTeer's husband, former prime minister Joe Clark, was also at the meeting. Joyal later appeared before the same committee.

Conservative MP Larry Brock (Brantford—Brant South—Six Nations, Ont.) raised Joyal’s decision to require that Manitoba court officials state their pronouns, asking Fraser whether his government planned to push identity politics into the courts. Fraser responded that the government would allow the courts to control their own processes. 

Conservative MP Andrew Lawton (Elgin—St. Thomas—London South, Ont.) asked McTeer to explain how her advisory board defined “diversity” as one of its criteria for candidates. 

“I think we probably all wish we did know. Whether it’s just a checkmark, this person fills a certain category or cultural identity or whatever, gender. Or whether its someone who has an inherent understanding through their life experience, through their professional experience, as to what in fact is the diverse nature of the country,” McTeer replied, before lamenting that Canada has done itself a “disservice” by delving deeper into “checkmark” diversity rather than the diversity of viewpoints and experience. 

Baber pressed Fraser about previous instances in which Trudeau had appointed judges who had donated to the Liberal Party to provincial court posts. Fraser wouldn’t rule out recommending that Prime Minister Carney could appoint a Liberal donor in the future, and said that donation history should not influence an appointment decision either way. 

Baber also took issue with a question on the application form for candidates for Supreme Court jobs. It asks applicants to “describe the appropriate role of a judge in a constitutional democracy.” Baber described that as a “leading question … that inevitably favours candidates with progressive leanings,” and he challenged Fraser on whether it is “appropriate for the attorney general to make judicial appointments based on political leanings.”

The two went back and forth on that one for a few minutes. Fraser rejected the notion that the appointment process favoured one political party over another. “I don’t share your concern,” he said.

Bloc Québécois MP Rhéal Fortin (Rivière-du-Nord, Que.) asked several questions about the extent to which provincial governments were involved in the appointment process, and Conservative MP Amarjeet Gill (Brampton West, Ont.) asked McTeer to confirm that the PMO did not have any influence over her advisory board’s recommendations, which she did.

None of the MPs criticized Joyal specifically, or signalled that they opposed his appointment. 

Joyal himself took questions from parliamentarians later in the day in a special meeting called for that purpose. Liberal MP and House Justice Committee Chair Iqra Khalid (Mississauga—Erin Mills, Ont.) asked him a lengthy question about his views on the intermixing of the courts and politics. Joyal responded, in part, by saying that the judicial, executive, and legislative branches should all play a role in “realizing change.” 

“I sometimes lament that I see potentially one institution not doing as much as they should in counterbalance to another institution that’s certainly being assertive, and being I think quite bold,” he said. 

Joyal criticized "demagoguery that can leave the impression that one institution is doing too much, or one institution is being thwarted. I don’t think that’s fair and I don’t think that’s good.”  

“We live in a complex federation where provinces and institutions have to balance each other…that’s not going to be an easier task if we’re not able to have intelligent discussions. I think that’s probably one of the big challenges of our future,” he said.

A version of this piece first appeared in Politics This Morning, your go-to source for insider news, analysis, and updates on where all the key political players are that day. Get more insider coverage directly to your inbox from The Hill Times’ executive editor Peter Mazereeuw and reporter Riddhi Kachhela in this subscriber-only daily newsletter. Sign up here.

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