Aren’t the Canadian Courts supposed to be separate from Church and State?
If NOT, then when did that change? It NEVER WAS SEPARATE to begin with!
It’s all part of the ILLUSION to make us think that it is, however, the PROOF is in the PUDDING!
The created ILLUSIONS for your ENTERTAINMENT
By Jeff Lacroix-Wilson
OTTAWA – The Harper government faced accusations Monday of trying to intimidate Canada’s top judges, as the question of whether a Supreme Court chief justice can talk to the government about judicial appointments spilled into the House of Commons.
“Does the attorney general consider that it is part of his job to ensure that there are never any attempts to intimidate the courts in our country?” NDP leader Tom Mulcair asked Justice Minister Peter MacKay.
“The attorney general’s job is to defend the integrity of the court system in our country, not to help the prime minister attack the chief justice. Is our attorney general telling us that he will be the henchman of the prime minister in this unwarranted, unprecedented attack on the Supreme Court and its chief justice?”
A chorus of critics and legal experts has criticized Stephen Harper over the rhetorical war that broke out last week between the prime minister and the chief justice of the Supreme Court, Beverley McLachlin.
The Canadian Bar Association wants Harper to state publicly that McLachlin did nothing wrong in trying to raise an issue surrounding the nomination of a justice to the top court.
But Harper’s office implied that McLachlin, Canada’s longest-serving chief justice, had inappropriately questioned the eligibility for the court of a Quebec nominee, Marc Nadon.
Monday, MacKay escalated the feud, implying that the Supreme Court itself went beyond the strict wording of the law when it then went on to nix Nadon’s appointment. In March, the court found Nadon ineligible to sit as one of three Quebec judges on the Supreme Court because he came from the Federal Court of Appeal.
The Supreme Court Act specifies that Quebec judges must come from either the province’s Court of Appeal or Superior Court, or have at least 10 years’ standing at the Quebec bar.
However, MacKay said that until the Supreme Court ruled Nadon ineligible, there was nothing in the Act to prohibit the appointment of a Federal Court judge to one of the Quebec slots on the top bench.
None of this impressed Mulcair. He said the government’s moves were “a direct attempt to intimidate the Supreme Court.”
Last week, Harper accused McLachlin of inappropriately trying to make an “inadvisable and inappropriate” phone call to warn him that there might be an eligibility problem with Nadon’s appointment.
Fred Headon, president of the Canadian Bar Association, said the government’s comments could undermine the nation’s trust in its top court.
But PMO spokesperson Jason MacDonald said MacKay and Harper “stand by their comments.”
Former Justice Minister Irwin Cotler, now an opposition Liberal MP, argued that contacting the government about appointments was part of Mclachlin’s job.
“Consultations between a chief justice and minister of justice are a normal part of the appointments process,” Cotler said.
“The chief justice is a perfectly appropriate person to provide the minister with input … particularly on the administration of justice,” said Cotler. He said that at the time McLachlin offered her advice, “Nadon had not even been nominated … let alone appointed.”
Cutler said, “any time an officer of Parliament renders an opinion that is adverse to the government, it responds by attacking their credibility.”
McLachlin’s office said in a statement Friday that the chief justice did not try to interfere in Nadon’s appointment. The statement insisted there is “nothing inappropriate” in raising issues with the government about the eligibility of a nominee.
The Harper government has been at odds with several of the top court’s decisions. For instance, aside from rejecting the appointment of Nadon, the court recently declared the government could not go about major reforms to the Senate without a certain level of provincial consent.
– With files from the Canadian Press.
Stephen Harper stealthily lays his imprint over the Canadian judiciary
Justice reporter Sean Fine spent months researching the role that key Conservative cabinet ministers are playing in the appointment and promotion of federally appointed judges.
His article provided compelling evidence that Harper and key current and former cabinet ministers (including James Moore, Rona Ambrose, Jason Kenney, Joe Oliver, and Peter MacKay) have devoted enormous attention to finding “reliable judges”.
Reliability, in the Conservative government’s view, is someone who is more likely to defer to the will of Parliament. Fine also wrote that ideal judicial candidates have a “general worldview involving a lack of sympathy for minority causes or convicted criminals”.
Perhaps not shockingly, he also revealed how some judges lobby Conservative politicians either directly or indirectly for promotions to higher courts.
There’s also some terrific reporting on the ideological underpinnings of the “originalism” movement, which seeks to stifle constitutional interpretations that reflect changing times and social attitudes.
There’s a widespread belief that the Supreme Court of Canada is the country’s bulwark against Harper’s legislative excesses.
Fine’s article in the Globe and Mail demonstrates that there’s no room for complacency because the Conservatives are gradually chipping away at the independence of the judiciary from below.
Stephen Harper’s courts: How the judiciary has been remade
Some of Justice Rooke’s colleagues resented his lobbying, believing that Neil Wittmann of Calgary, then the associate chief justice, deserved to be chief justice. Justice Myra Bielby, the senior judge in Edmonton, would probably then become associate chief justice. According to a 100-year-old tradition – never broken – if a chief justice was appointed from Calgary, the associate chief was chosen from Edmonton, and vice-versa.
A committee of his colleagues on the bench approached Justice Rooke about a rumour he had even met personally with Mr. Harper. (The Prime Minister appoints chief and associate chief justices.) In the Canadian system, such a meeting would have been seen as irresponsible, and the committee’s approach was a sign that the judges were alarmed by the prospect. Justice Rooke vehemently denied that the meeting took place, which the judges accepted.
But some made known who they felt should be chief and associate chief. “There were a lot of ‘bank shots’ [from Justice Rooke’s colleagues] to make sure that for an appointment like that, you have the right person, because the system has to work,” the source said. To make a bank shot is to have someone else send your message – “you get the justice minister [of Alberta] to make a call, you get the chief of staff to make a call, you get three or four senior lawyers to make a call.”
Mr. Harper named Justice Wittmann, who joined the bench as a Liberal appointment, as chief justice. Then, despite the century-old tradition, he chose Justice Rooke as associate chief. The government later promoted Justice Bielby to fill the first vacancy on the Court of Appeal.
In 2013, Justice Rooke took on the Khadr case. On the day of the hearing, Mr. Harper publicly stated his support for the most severe punishment possible. Politicians rarely comment on cases before a court because it may look like an improper attempt to influence a judge. Still, Justice Rooke said his ruling in favour of the Canadian government – to treat Mr. Khadr as an adult – was a straightforward matter of statutory interpretation.
Six months later, the Alberta Court of Appeal overturned the ruling in a 3-0 vote. Among the three were two Conservative appointees, including Justice Bielby. This spring, the Supreme Court also ruled in Mr. Khadr’s favour – adding insult by deliberating for just a half-hour.
No one has suggested that Justice Rooke was unfair, or that there was a quid pro quo for his appointment as associate chief justice. Dennis Edney, an Edmonton lawyer who represented Mr. Khadr, said he found the judge “attentive and fair in his dealings with me and my representations. That is all I ask.”
To some Conservatives, the appointment of Neil Wittmann ahead of John Rooke showed that ability matters more than politics in Conservative appointments. “It’s a very, very good example to show where skill and talent and colleagues’ confidence trumped political bias,” a party source said.
But to outside observers, when judges lobby for promotions, they undermine the appearance – and perhaps the reality – of judicial independence.
“If you’re starting to get into a lobbying process, are you not then beholden to those who make the appointment?” said John Martland, a former president of the Alberta Law Society, speaking generally.
The Globe contacted Associate Chief Justice Rooke through his assistant and asked if he wanted to correct any facts or provide comments. Diana Lowe, his executive counsel, replied that judges speak only through their judgments and a response would not be appropriate.
In an ironic postscript to these events, the federal government went before the Alberta Court of Appeal in May to block Mr. Khadr’s release on bail. A single judge heard the case – Justice Bielby.
Mr. Khadr is now free on bail.
Tapping a ‘very small pool’
Because there is rarely a straight line from what an appointing government expects to how a judge actually rules, the Conservative strategy is designed to reduce uncertainty, using broad categories as a convenient shortcut to predicting the ideological orientation of candidates for the bench.
Criminal defence lawyers are underrepresented, according to a Globe and Mail review of all appointment notices since 1984. Academics are, as well, with some notable exceptions. So, too, is anyone who has a senior role in a group with the word “reform” in its title. (One such group is – or was – the Law Reform Commission of Canada, later known as the Law Commission of Canada; in the Conservative government’s first year in power, it scrapped the organization.)
Business lawyers are favoured. Prosecutors are favoured.
Judges appointed by Progressive Conservative prime ministers Mulroney and Kim Campbell look very much like judges appointed by Liberal prime ministers Jean Chrétien and Paul Martin, apart from the underlying political affiliations. They appointed more criminal defence lawyers than prosecutors. They did not shy away from academics, either. And Mr. Mulroney chose leading liberals such as Louise Arbour and Rosalie Abella in Ontario, and Morris Fish in Quebec; Liberal governments later named them to the Supreme Court.
The current Conservative government has appointed few judges in the past nine years who have liberal reformist credentials. Three judges it named to the Ontario Court of Appeal since late in 2012 represented groups arguing against gay marriage at the Supreme Court in 2004. As of this winter, it has appointed 48 prosecutors, compared with 12 lawyers who did primarily criminal defence work, and 10 academics.
Conservatives say the system is no more ideological today than it was under the Liberals. “I can’t see the difference,” a Conservative said. “When someone is a committed federal Liberal and has worked for the party for 30 years and gets to be of a certain age and a certain standing where some political heavyweights recommend them [for the bench], it’s because they’re ideologically framed by working for the party.”
But David Dyzenhaus, a University of Toronto law and philosophy professor, says he is deeply worried by the pattern of appointments.
“It’s very clear that it’s almost impossible for a judge who comes from the political centre or to the left to be appointed,” he said. “Which means that the appointment of judges is from a very small pool of lawyers. That invariably means people of considerable ability are being passed over. The quality of the bench is going to be lower. It will invariably take its toll on the Canadian legal order.”
How to evade ‘lefties’
The screening committees set minimum standards for the selection of judges. Across the country there are 17 such judicial advisory committees (JACs), as they are known, and they are the only stage of the appointment process whose rules are public.
Until 2006, the committees had three choices when presented with a candidate: highly recommend, recommend or not recommended. Mr. Toews changed that, however, stripping out the first option; now committees can only recommend, or not.
The loss of the highly recommended category “removes a lot of the committee’s ability to express to the minister its view as to who really should be appointed to these positions,” said Frank Walwyn, a Toronto business lawyer appointed by the Ontario government to the screening committee in the Greater Toronto Area.
Of the 665 applicants in 2013-14, the committee recommended 300, or nearly one in every two. Of those 300, the government anointed a chosen few – 66 judges, or roughly one in five of the recommended group. Under the last year of the old rules, 2005-6, the committees “highly recommended” 76 applicants; if a government wished, it could find enough highly recommended judges to fill all the vacancies.
From the Conservative government’s perspective, the committees sometimes stand in the way of the judges it wishes to appoint. So the government has taken deliberate steps to evade the committees, at least in Alberta, a local source said. It has a kind of express lane to bypass the need for a committee recommendation: choosing from judges already serving on the Provincial Court, a lower level of court appointed by the province. (The committees comment on these judges, but make no recommendation.) These tended to be right-of-centre judges with a known track record.
The advisory committees “were not letting through tough-on-crime candidates because they wanted some lefties to be appointed,” the source said. “Liberal judges had control of the screening committees. One of the ways [the government] could get around this is if you were already appointed to another court, the screening committee could not block you; they could only comment.” In this fashion, a Provincial Court judge, Brian O’Ferrall, made an unusual leap straight to Alberta’s highest court, the Court of Appeal, in 2011. Several others went to the Court of Queen’s Bench.
This is not against the rules. The appointments system has wide discretion.
The next steps: recommendations from the political ministers, then the judicial affairs adviser checking out the candidates. One such adviser, Carl Dholandas, was a former member of the national Progressive Conservative Party executive who served as executive assistant to Nigel Wright when he was chief of staff in the PMO. The justice ministry declined to make him available for an interview. He left the post early this year, and the ministry would not even reveal the name of the new adviser. (It’s Lucille Collard, who was an official at the Federal Court of Appeal.)
After the Justice Minister’s recommendation goes to the PMO, an appointments adviser, Katherine Valcov-Kwiatkowski, screens the candidates yet again, before a name makes it to a cabinet vote.
This unwieldy process has slowed the system. Chief justices grew restive at the high numbers of vacancies on their courts: at record levels last year – more than 50 open seats. That number plummeted to 14 in June, with an avalanche of appointments before the official start of the federal election campaign. Quebec Court of Appeal judges were stretched so thin last fall that Chief Justice Nicole Duval Hesler asked Superior Court chief justice François Rolland if she could borrow some judges on an ad hoc basis, a source said. Chief justice Rolland said no.
In his annual public address in September, chief justice Rolland complained that one of the vacancies on his court went back to August, 2013, and four others to April, 2014. Civil trials expected to take longer than 25 days must be booked four years in advance, he said. He jokingly asked if anyone could get Justice Minister MacKay on the phone, because he had tried and failed. The judge has now retired.
One seat that was filled: In 2013, an opening on the Manitoba Court of Queen’s Bench went to former justice minister Vic Toews.
The judge who doesn’t like Canadian law
It is easy to see why Mr. Harper would be a fan of Grant Huscroft, Ian Brodie’s friend and co-editor, and why the Conservative government named the Western law professor to Ontario’s highest court, effective in January. (Mr. Brodie, now at the University of Calgary, tweeted his congratulations.)
In his published work, Mr. Huscroft has rejected virtually everything at the heart of the Canadian constitutional order. He is opposed to judges reviewing rights claims under the Charter – an important part of his job. He believes it’s undemocratic and judges are no better than anyone else at deciding whether a law is consistent with the rights commitments of the Charter. He has made the same point as Mr. Harper on gay rights and the Charter – that the framers deliberately did not protect gay rights. He has written that democracies do not “grossly violate rights,” but put “thoughtful” limits on them.
Wil Waluchow, a legal philosopher at McMaster University who strongly disagrees with Mr. Huscroft’s originalism, describes him as open-minded and respectful of different viewpoints. “He may fight against the mainstream to some extent, but I don’t think it will be in a way that is disrespectful or dishonest,” Prof. Waluchow said. “I respect Grant an enormous amount.”
Prof. Dyzenhaus, who co-edited a 2009 book of essays with Mr. Huscroft, is also familiar with his work, and has a somewhat different view. “He’s an attractive choice for Stephen Harper because he shares with Harper an antipathy for entrenched bills of rights and the way of interpreting those rights that Canadian judges have developed for 30 years,” Prof. Dyzenhaus said by phone from Cambridge University, where he is the Arthur Goodhart Visiting Professor of Legal Science.
So why does Mr. Huscroft want to be a judge? In Canada, unlike in the U.S., there is no public review of the federal appointments of new judges in which that question could be asked. Or this one: How can he stay true to his principles while respecting precedent?
Mr. Huscroft declined multiple requests for an interview. But Prof. Dyzenhaus believes Mr. Huscroft hopes to bring change from within.
“If I’m right that he thinks large chunks of the Canadian legal system are illegitimate, one reason for taking office is he wants to get involved in a kind of damage-limitation exercise. So to the extent he can, he will try to prune the living tree.”
The constitutional romance
Constitutional romantics assume the worst of elected legislators and the best of judges,” Mr. Huscroft has written. For nearly 10 years, the Conservative government has been dripping blue ink into a red pot – attempting to expunge, bit by bit, the country’s 30-year romance with the Charter, and with judges who go out of their way to be the guarantor of rights.
The moves have produced mixed results. The government is up against a culture of unanimity; when Liberal and Conservative appointees sit down together, they tend to find common ground. It also faces a tradition of judicial independence, as some Conservative-appointed judges have demonstrated in striking down tough-on-crime legislation. “This, irrespective of who appointed you, is always the dominant culture,” one appeal court judge said.
There is no strong evidence, in a statistical sense, of more severe criminal sentencing. But there are other areas of the judicial system where the effects can be seen. Perhaps the clearest sign of change is on the Federal Court. Refugees whose claims are rejected by the immigration board can ask this court to review their case. The review is not automatic, and Conservative appointees on the Federal Court agreed to a review in just 10 per cent of cases, compared with 17.6 per cent for Liberal appointees, a study found. David Near, a former judicial affairs adviser for the Conservatives, accepted 2.5 per cent of requests for judicial review he heard on the Federal Court. In 2013, he was appointed to the Federal Court of Appeal.
As an election approaches that will be fought in part on security from terrorism and crime, the Prime Minister and his cabinet continue their determined effort to reshape the judiciary. In June, they promoted Justice Bradley Miller, another former Western professor and proponent of originalism, to the Ontario Appeal Court. He opposes gay marriage and asks whether the Supreme Court has lost its moral centre. Business lawyers were again prominent, criminal defence lawyers scarce.
Mr. MacKay’s office has given only one answer when The Globe has asked questions over the past eight months about individual appointments and the judicial appointments process: “All judicial appointments are based on merit and legal excellence and on recommendations made by the 17 Judicial Advisory Committees across Canada.”
Sean Fine is The Globe and Mail’s justice reporter.