The Caretaker Convention and Supreme Court Appointments

Abstract

On 27 July 2015, Prime Minister Stephen Harper announced that Mr. Justice Russell Brown, of the Alberta Court of Appeal, will replace Mr. Justice Rothstein on the Supreme Court of Canada, when the latter retires at the end of August. Six days after making the announcement, the Prime Minister advised the Governor General to dissolve Parliament. This will be the first Supreme Court appointment, made while Parliament is dissolved, since 1958. That is no accident. There is a constitutional convention obligating the government to exercise “restraint” in making appointments while it is functioning in a “caretaker” role. Though the scope of the convention may be disputed, the weight of historical precedent, the professed views of successive governments as to the existence of the convention, and the actual and perceived significance of Supreme Court appointments, all suggest that it applies to them.

In this paper, I want to consider the caretaker convention and what it has to say about the appointment of Supreme Court of Canada judges while Parliament is dissolved. My central aim is not to assess the constitutionality of Mr Justice Brown's appointment specifically. I do, however, use his case as a springboard for reflecting on conventions generally, the caretaker convention, and its application to the appointment of Supreme Court judges. I also consider the implications of the government's decision to circumvent the caretaker convention by announcing Brown's appointment immediately before advising the dissolution of Parliament.

Keywords: conventions, caretaker convention, elections, Supreme Court of Canada, appointments, constitutional law