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.