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Tuesday, February 13, 2007

Harper is Now Messing with the Justice System...and He is Starting to Scare Me!

The Harper government changes to the review process for how judges are selected are disturbing. I don’t take too much exception to the fact the government of the day appoints members to the review committees and makes the ultimate selection and appointment of judges. I do get alarmed however about some aspects of the changes in the review and recommendation processes Harper has made.

Mulroney put this judicial appointment process in place years ago to reduce political interference. In fact when I started out as a young lawyer in 1974 the process of appointment to the Bench was entirely political…and pathetically so. That said, the lawyers who were the personal choices of the Prime Minister (or the Minister of Justice on occasion too) invariably became quality judges who fulfilled their roles independently, dispassionately and skillfully.

Even though the system “worked” it was inappropriately political and so these review committees came into being. They were designed to review applicants for judicial appointment, and to make some recommendations to the Prime Minister for appropriate appointment. This system has worked well and has been modified and adapted over the years. The ultimate political discretion in the appointment process has been retained by the Prime Minister, but the politics of the process was fettered significantly .

Not any more however. The Harper changes are most disturbing. The inclusion of police representation in the process is a concern. In fairness, the police ought not to be choosing judges. As one jurist put it, should there also be representation for accused and convicted citizens too? The Chief Justice of the Supreme Court has broken a tradition of official quiescence and recently wrote a letter to the Prime Minister expressing reservations over including the police in the judicial appointment review process.

Harper’s next moves were to shift the actual balance of power on the committees towards the political by adding another member from the government, now four instead of three. This puts eight committee members, half political appointees plus the police, to be “balanced” by four other representatives, from the local provincial government, the provincial Bar amd Law Society and the Judiciary.

Finally there is no sense of nuance when considering the complex process of determing capacity and suitability for appointment. The committee recommendation is simply determined to be "qualified or not." The original third category of recommendation, that of highly qualified is now gone. This leaves the Prime Minister more latitude in picking favourites because he would not have to ignore some others with higher qualification recommendations but not the right political slant.

The clear motivation here is to influence the kind of candidates who get recommended for appointment so they will more closely align with the conservative and ultra-conservative values of the Harper Cons and their so-con supporters. The judicial activism they decried while in opposition is now being institutionalized. The judicial activism they seek is the kind that is acceptable to them and reflects the dominant conservative social values of the Conservative Party of Canada.

This is dangerous stuff, especially for citizens. Some times our only protection from abuse by the state, its officials and agents, like the police, is the independent and indifferent judiciary. Just ask Maher Arar, or Steven Truscott, and Donald Marshall and so on, and so on, and so on. Ask yourself where would they be without an independent judiciary? The answer is rotting in a jail, somewhere while innocent.

This stuff may be seen as legal esoterica or just so much justice system mumbo jumbo to some people. It is not. It is fundamental to your freedoms and protections as citizens. The system works well, for the most part. When it breaks down, you only have the protection of an independent Bench and Bar to protect you as a person and as a citizen. If the Bench is biased you are screwed.

I do have a constructive suggestion to make for positive change of the system however. Prime Minister Harper, go back to the original system but make one significant change. The Prime Minister's personal appointees to these review committees ought to be brought before the appropriate Parliamentary Committee to be questioned and it should be televised. This way we can be assured about their values and views. We can have confidence in their capabilities and be satisified that they understand the roles and responsibilities of their undertaking.

Harper's Cons did that for a recent Supreme Court judicial appointee. I think the public has a right to know what kind of people are being appointed by the Prime Minister to review the applicants for the Bench too. It will tell us something about them and a lot more about the Prime Minister's personal judgement and his agenda too.

This move by Harper to re-politicize the system of review and recomendation for judicial appointment is the most dangerous and reckless thing he has done in the whole year he has been in office. I am now wondering if I need to start being more than merely politically skeptical and cynical about Harper and company.

I am wondering if I need to start to being afraid of the Harper Conservative government. They are clearly showing a wanton disregard and disrespect for proven processes that serve to protect my fundamental freedoms as a citizen.

UPDATE: EDMONTON JOURNAL EDITORIAL of Feb 14 express many of the same concners I have. It is worth a read.
Link Byfield gives a very articulate perspective on this issue as well. He obviously does not see this change as a manipulation and politicization of the process as much as I do. The key clarification I would make on Link's Commentary is the committee merely recommends a list of qualified judicial appointees. The PM makes the final decision from the list the committee recommends. Control the process, you control the list, and you control the outcome.

7 comments:

  1. Ken, I agree with you that the police should not have a role in the appointment process. One role of judges is to circumscribe the powers of the police. So how can the police choose the people who are supposed to limit their powers? However, I wholeheartedly disagree that the process was not highly political before. Nothing has changed. The government can appoint whoever they want, as long as they are qualified. For example, someone like Scalia can get appointed if the PM wants since the individual is highly intelligent and eminently qualified.

    " I do have a constructive suggestion to make for positive change of the system however. Prime Minister Harper, go back to the original system but make one significant change. The Prime Minister's personal appointees to these review committees ought to be brought before the appropriate Parliamentary Committee to be questioned and it should be televised. This way we can be assured about their values and views. We can have confidence in their capabilities and be satisified that they understand the roles and responsibilities of their undertaking."

    Wow! What double talk! The LPC and the CBA has explicitly condoned such a procedure under the guise that it would be an American-style system. Would Dion flip-flop on this position? I think not.

    Another attempt to make Harper look scary - it didn't work in the last election and it won't work in the next one.

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  2. I admit, smart move by the libs to move away from criticizing the Cons on the environment - they have gained no traction on that issue and won't gain anymore with the Cons announcing an environmental plank every week. The only problem is that it might be too late to shift gears.

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  3. ken chapman9:18 am

    eric - I know how the system works - at least a bit. Party membership has not, and should not preclude eligibility for judicial appointment. But it ought not to be included in any way as a defining qualification criteria either.

    The historic saving grace in all of this has been the quality of the characters and capacities of the appointees to the Bench.

    I have never heard criticism from lawyers, at least in the Alberta Bar, about a judicial decision ever being seen as influenced by politics.

    Past abuse by Liberals does not justify current Conservative abuse. But that is not the issue here.

    This move by Harper to change the judicial appointment review process is a direct effort to politicize it. Control the process and you can dictate the outcome.

    This process change is clearly designed to result in a list of recommended appointees who "fit" a preconceived political agenda for eligibility for the Bench.

    THAT IS WRONG!

    As for Harper being SCARY...he was not in the 2006 election because his So-con support kept their mouths shut. They were still working on their social conservative agenda but they were pressing it from behind the scenes.

    He was SCARY in the 2004 election becasue the So-cons let their political agenda be very well known.

    In election 2007 Harper has made himself SCARY again. This political manipulation of what needs to be a non-political process may be just the start of Harper being SCARY again.

    I am now truly afraid of what Harper would do with the unfettered power of a majority government...especially when you consider how much discretion we delegate to the Office of Prime Minister.

    Read Jeffery Simpson's book the "Friendly Dictatorship" for the sobering reality.

    Think twice - vote once.

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  4. Of the LPC appointments, over 70% donated to the liberal party. Same goes with the CPC appointments.

    "The historic saving grace in all of this has been the quality of the characters and capacities of the appointees to the Bench."

    I agree - there are great jurists of both Lib and Con stripes.

    I agree that the methods the Cons are using is not needed - they could easily get judges that they want on the bench without the need to change the appointment process. Having said that, the END RESULT is still the same - the PM picks whomever he wants.

    There's a great article by Moin Yahya at the U of A law school on this discussion - I'll try find it later.

    Again, this scary stuff is not helpful. Even though I'm in favour of SSM, I'm not "scared" about individuals who are opposed. It won't work this time - unless the LPC resorts to negative ads again.

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  5. Anonymous2:23 pm

    I'm guessing we should revert back to the system where donations to the LPC were required for appointments: http://calsun.canoe.ca/News/Columnists/Corbella_Licia/2007/02/14/3616227.html

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  6. Anonymous2:41 pm

    Ken, I am sure you realize that the use of the term SCARY as you describe it, is clearly only relative to what are your own personal views. A not insignificant number of Canadian think it is SCARY what has happened to the judiciary and the advance of "victims" organizations under the guise of "rights".

    I consider myself middle of the road, but I think socially conservative people have just as much right to be scared of the socially liberal, as vice versa.

    In fact, the momentum is behind the latter. All one need do these days is claim a "right" to do something, and lobby/litigate (often at taxpayer's expense) until you get what you want. The fact that the Charter allows these "rights" to be added after the fact only enables this activity. Squeaky wheel gets the grease.

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  7. ken chapman3:03 pm

    HI Anonymous at 2:41 - I am only speaking for me when I say I find this politicization of the judicial review process scary.

    I am also wary of the so-called pluralist social liberals. My experience is they try to impose their view on the rest of society as well.

    That is why I enjoy being a Progressive Conservative. It melds the best of individual and collective rights and responsibilities while balancing order and freedom.

    It starts with the individual freedoms but appreciates they are relative and not absolute. Then we appreciate the orderly advantages a collective approach gives us too.

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