Liberals appointed partisans
Liberal Members of Parliament have in recent days repeatedly accused the Conservative government of appointing partisans to committees that vet judicial appointments, but a review of those selected by the previous government has found a significant number of them had Liberal ties.
In 2005, the government named at least nine loyalists to the bodies that help choose federal and provincial superior court judges, including a president of the federal Liberal party’s B.C. and Manitoba wings, a contender for the presidency of the Nova Scotia branch, a former Newfoundland Cabinet minister and unsuccessful provincial candidate.
Stephen Harper’s Conservatives have come under fire this week from opposition parties and lawyers for stacking retooled versions of the judicial advisory committees with political staffers and former Tory candidates.
Today, Liberal MP Michael Ignatieff will attack the Tory government in Parliament, accusing them of attempting to hijack the courts to enact their law-and-order agenda.
An early draft of the opposition motion states: « That, in the opinion of this house, the government is failing to act in accordance with the democratic and open values expected of its office by imposing a narrow minded, socially conservative ideology as reflected in its approach to the judicial appointment process to dramatically increase the influence of right-wing ideology in the judiciary. »
But given their track record, some say the Liberals are on shaky ground.
« The Liberals could have difficulty getting on their high horse when it comes to partisanship, » said Lorne Sossin, a law professor at the University of Toronto.
But Mr. Ignatieff said yesterday in an interview that his motion is not simply « our patronage versus their patronage.
« It’s a deliberate attempt by the executive branch of our government to stack and create a court system in its image, » he said. « I do not think that the Liberal party has ever gone out and said, ‘Here is our justice philosophy and we’re going to stack the court with people who subscribe to our philosophy.’ »
Legal experts say appointments of people with party ties is a political tradition that does not in itself compromise the way in which judges are selected — as long as it’s not the only criteria.
Roderick Macdonald, a law professor at McGill University in Montreal, said the naming of political allies and friends to boards, commissions and agencies seems an inevitable outcome of democratic politics.
« The fact that someone has previous ties to a political party… should not be a disqualification, » he said. « The real questions are: Are the people who have been selected competent? And will they do the job asked of them with integrity? »
A. Robert Sampson, a prominent lawyer in Sydney, N.S., who once ran for the presidency of the provincial Liberal party, said he’s not naive about how things work in politics. But he believes he was asked to serve two terms on the judicial appointments board for his 25 years of experience practising law.
« For me personally, I would like to think that I’ve got a broad and diverse enough background to have contributed something meaningful, » Mr. Sampson said. « I know this all probably sounds incredibly self-serving, and I’m in a bit of an awkward position but … I don’t think me being a Liberal or someone else being a Tory is the stick by which to judge whether someone is competent or not competent to sit on the committee. »
Peter Bowal, a University of Calgary law professor, said the judicial selection committees, which Mr. Harper has just altered, were set up two decades ago in response to rampant Liberal patronage.
When former prime minister Pierre Trudeau left office, he said there was a « stampede » of party loyalists into plum positions, including the judiciary, that successor John Turner did nothing to stop — giving rise to Brian Mulroney’s ‘You had an option, sir,’ zinger during a televised debate.
« It was exactly the same under them, » Prof. Bowal said. « It’s not more politicized today. »
In 2005, an Ottawa Citizen investigation revealed that more than 60% of 93 lawyers who received federal judicial appointments in Ontario, Alberta and Saskatchewan since 2000 donated exclusively to the Liberal party in the three to five years before securing their posts.
Marlene Jennings, the Liberal justice critic, said that « hypothetically speaking » even if her party had named political friends to the screening committees, what the Conservatives are doing is worse.
Historically, the committees have been comprised of seven members: a judge, a local member of the Canadian bar association, a nominee from the province and three picks from the federal justice minister. The Conservatives have now added an eighth member: a representative from law enforcement, but stripped the judge of voting power.
This, said Ms. Jennings, has tipped the balance of the committees in favour of federal appointees. Coupled with the fact the bodies will no longer be ranking the pool of candidates to recommend as top contenders, amounts to a « lowering of the bar » for the Conservatives to name their ideological allies judges, she said.
« I have no trouble whatsoever challenging the government because even if I admitted their premise, we still did not have the majority and therefore we were not in a position to push for ‘our’ partisan, political, ideologically bent candidates without the clear support on the part of the four independently appointed members, » she said.
J. Parker MacCarthy, the president of the Canadian Bar Association, said all Commonwealth countries struggle to some degree with concern about patronage infiltrating the bench, but that Canada’s process, however imperfect, has managed to be the envy of the world.
He lamented the fact the latest changes, as well as the political debate surrounding them, could result in the undermining of that golden reputation.
« These committees should not be a forum for bare-knuckled political fighting, » he said. « The process not only has to be fair, it has to be seen to be fair. »
Robert Nicholson, the federal Justice Minister and Attorney- General, is defending Tory choices for the committees — which include one for each province and territory, except Quebec, which has two regional bodies, and Ontario, which has three.
« We make no apologies for including competent and professional individuals on these committees, who do this important work on a voluntary basis, » said Genvieve Breton, a spokesperson for Mr. Nicholson.
« Our government will continue to appoint judges based on merit and legal excellence with input from a broad range of stakeholders. »
Peter Russell, a University of Toronto political scientist who has studied the judiciary, said there is a difference between Mr. Harper’s recent appointments and those of Mr. Mulroney, Jean Chretien and Paul Martin before him.
The difference, he said, is some of the Harper appointees have staked out their ideological ground publicly, said Prof. Russell, giving the example of Rob Martin, a University of Western Ontario law professor who authored The Most Dangerous Branch: How the Supreme Court of Canada has Undermined our Law and our Democracy.
Prof. Sossin said the Conservative government’s picks for the judicial advisory committees can be divided into two categories: those with connections to the party and those who share the Prime Minister’s views.
« The idea of going to partisans is concern A, » Prof. Sossin said. « The idea of going to ideologically motivated individuals, even if they’ve never given to the Tory party, is concern B. And I think those concerns collide. »
But the Conservatives have said it is wrong to assume that anyone tied to the Liberals is simply « partisan » and does not hold an ideological viewpoint.
The Prime Minister has also been unapologetic about his party’s approach to the appointment process.
« We want to make sure we are bringing forward laws to make sure that we crack down on crime, that we make our streets and communities safer, » Mr. Harper said in the House of Commons yesterday. « We want to make sure our selection of judges is in correspondence with those objectives. »
J’espère que personne n’avait besoin de la Commission Bastarache pour découvrir que la nomination des juges se faisait sur des bases partisanes.
Il faut avoir des juges élus par la population plutôt que nommer par les élites politiques. Tant et aussi longtemps que ce processus sera dans les mains des politiciens, il y aura du patronage.