|For several weeks in February, the Globe and Mail appointed itself the official opposition to the federal government, running numerous articles, columns and editorials criticizing the process by which the Conservative government of Stephen Harper is choosing judges.
Last year, the government amended the composition of the federal Judicial Advisory Committees that examine government nominees to various courts. The makeup of the 12 regional JACs was expanded so that police representatives would have a voice on the committees. Previously, the federal government appointed three members from the community at large, while the other four members were selected by provincial governments, provincial law societies, the Canadian Bar Association and provincial chief judges. The Tories added one member – from the police – bringing the number of JAC members appointed by the feds to four of eight.
All JAC appointments are non-paying, two-year commitments.
The federal government has been attacked by the opposition parties, “progressive” bloggers and elements in the media for allegedly attempting to “stack the courts” with like-minded lawyers.
Liberal deputy leader Michael Ignatieff presented a motion in Parliament, stating “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.”
Liberal leader Stephane Dion charged Prime Minister Stephen Harper with “stacking the committees” in order to “select judges who will cater to his neo-conservative agenda.” He charged that in doing so, the prime minister was “politicizing” the courts. Liberal justice critic Sue Barnes told Lawyers Weekly the JAC changes were a sign of the government’s anti-court bias. Liberal MP Anita Neville said Harper was attempting to do “through the back door what he can’t do through the front door” – never mind that the process has been made more transparent and representative through the government’s changes.
The Globe and Mail, however, joined the official opposition when it went beyond reporting on these changes to outright slamming the government for what it saw as its threatening of the independence of the courts. The paper “reported” in a front-page story by Campbell Clark on Feb. 12: “The Conservative government has loaded the committees that determine who can become a judge, selecting a series of Tories, including former politicians, aides to ministers, riding association officials and defeated candidates.” On the same day, Globecolumnist John Ibbitson chimed in: “There isn’t any other way to put it: the Harper government, by perverting the rules and by appointing party loyalists to key positions, intends to stack Canada’s courts with conservatives.”
The next day, the Globe regurgitated much of its own reporting. Clark once again hammered the Tories: “Stephen Harper’s Conservatives are stacking the committees that select judges with partisans to create an ideologically driven judiciary that will steer Canada’s courts to the right, opposition parties charged yesterday.”
In a case of obvious overkill, the Globe also ran a Canadian Press story by Jim Brown that breathlessly reported, “At least 16 of 31 recent appointments to the panels have Conservative party ties, according to a survey by the Globe and Mail. Others, while not directly linked to the party, have expressed right-of-centre views about the proper role of the judiciary.” (The CP numbers contradicted those reported in one of the Clark stories, which claimed that 16 of 33 appointments were Conservative partisans.)
But as Justice Minister Rob Nicholson pointed out, it is he, not the JACs, who finally decides who is appointed to the courts.
Toronto lawyer Bob Tarantino noted on his blog: “You want a weak point in the system, it’s the unfettered right of the minister to appoint which is the problem – not the fact that some slots on the JAC committee are being accorded to partisan appointments.” But no one is disputing the prerogative of the justice minister to appoint judges.
Indeed, the government does not even have to abide by a JAC non-recommendation. In 2005, the Canadian Bar Association released a report that included a request of then-justice minister Irwin Cotler to commit to not appointing nominees who did not receive an affirmative recommendation from the JAC. Cotler refused to mandate such limitations.
In one way, the criticisms leveled at the federal government are not new. The changes to the JACs came under fire when then- justice minister Vic Toews proposed them last Nov. 10. The Canadian Bar Association and the Canadian Judicial Council, headed by Supreme Court Chief Justice Beverley McLachlin, both expressed outrage over the move. As one prominent lawyer told The Interim, police have no right to be on the committees, because as stakeholders in the legal system, they have a vested interest in who becomes a judge. But aren’t lawyers and judges also stakeholders? the lawyer was asked. “Yes, but they step back from the process and look at it impartially,” she explained.
It was a little rich for the chief justice of the Supreme Court to publicly comment on the government’s plan to slightly alter the Judicial Advisory Committees by complaining that by doing so, the prime minister was politicizing the bench. Apparently, Chief Justice McLachlin was unable to grasp that by interjecting herself into the government’s process for choosing judges, she was herself politicizing the courts.
But McLachlin was hardly alone. Justice Colin McKinnon of Ottawa, outgoing president of the Ontario Superior Court Judges Association, said at the time: “I think it was appropriate to come out swinging on this one, because the whole structure of an impartial nominating body (for federal judges) has been eviscerated.”
What is notable is that while the opposition and media have harped on about the politicized process, no one has yet been able to point to either one unqualified JAC appointee or an unqualified lawyer appointed to any bench it the country. In fact, in January, Justice McKinnon applauded the Harper government for appointing nine “highly capable” judges in Ontario.
Tarantino said it is incumbent upon critics to name even one unqualified appointment to either the JACs or to any court. He also said critics should come up with a reason why political involvement should be a barrier to being named to the JACs, other than mere disagreement with the appointees’ politics. However, as Edmonton Journal columnist Lorne Gunter noted, even if the Tories were “stacking” the JACs and this was a problem, with only 16 identifiable partisans out of 84 total JAC members, this is “hardly a partisan coup” by the Harper Conservatives.
Not that partisan appointments are anything new. A study of Liberal judicial appointments from 2000-2005 found that fully 60 per cent had previous ties to the party. Those were not appointments to the committees that vetted judicial appointments, they were actual judges appointed by the Jean Chretien and Paul Martin governments. As the National Posteditorialized in response to the Globe’s excessive coverage of the Tory court appointments: “The notion that judicial appointments in this country were beyond the realm of partisan politics before the Conservatives came to power is laughable. As long as politicians have been appointing judges, the process has been partisan.”
The Post reminded readers of Benoit Corbeil, former executive director of the Liberals’ Quebec wing, who testified during the Gomery inquiry in 2005 that the quickest route to a judicial appointment was to work on a Liberal election campaign. He said that almost half of the 20 lawyers who volunteered for the 2000 election became judges in the three years that followed. It is estimated that in excess of two-thirds of Quebec judges appointed during the Chretien and Martin regimes have or had Liberal party connections.
The Post editorialized that the real outrage in the whole flap was that the Liberals and their media allies have been so outraged. As Gunter wrote, the real problem for the left is that its “clubby little monopoly over the judicial system” is being threatened.
But is even that true? With a few exceptions – Marshall Rothstein on the Supreme Court, David Brown on the Ontario Superior Court, Dallas Miller to the Court of Queen’s Bench of Alberta – many of the judges the Harper government has appointed are not noticeably different in judicial temperament than those already on the bench. The problem is that the law schools and the legal profession have generally produced legal minds occupying a very narrow range of the ideological spectrum – overwhelmingly on the left on social issues like abortion and gay rights.
In reforming the JAC process, the Conservatives have provided a (very) mild corrective. The shrieking criticism from some on the left appears desperate and unhinged. If the left‘s real concern is the politicization of the courts, it would have been better for the Liberal party under Chretien and Martin to not hide behind it to introduce radical social policies, especially in the area of gay rights. And the media might have criticized the usurpation of legislative prerogatives when judges began implementing laws, rather than merely interpreting them, such as when the Supreme Court threw out Canada’s abortion law in the 1988 Morgentaler decision. The media would also have been better to criticize politicians who hid behind court decisions, rather than provided leadership on issues that have great consequences for society – such as when judges created special rights for homosexuals or denied any rights to the unborn.
But the issue for many Liberals and their allies at the Globe and Mail is not the politicized judiciary, but rather the scoring of political points against the Tories. That’s plainly dishonest and does nothing to address the problem of politicizing the law, the real problem of which is judicial activism.