The Globe and Mail piece today by Kirk Makin outlines an example of what can go wrong when the separation of powers between the judiciary, the police and prosecutors get clouded.
The disturbing reality in the Truscott story is captured in this quotation:
"Defence counsel Phil Campbell told the court that the true nature of the evidence in the case was distorted and concealed for decades. "This kind of case -- where evidence starts to conform to the charge, rather than the charge conforming to the evidence -- is the hallmark of so many wrongful convictions."
"Mr. Campbell said that an honest belief held by Mr. Truscott's trial lawyer, Frank Donnelly -- that police and prosecutors would not mislead him about the exculpatory evidence -- was sadly misplaced. He said that Mr. Donnelly was far too diligent to have ignored evidence that would have bolstered his case."
"He was defending a 14-year-old boy he was attempting to keep from the gallows," Mr. Campbell said. "There is no way he would take it on the chin . . . if he knew there was a body of evidence that he could use to rebut the Crown and turn it to his advantage."
"Mr. Campbell said that, almost 50 years later, a combination of sound science, new witnesses and the unearthing of long-buried witness statements point directly toward Mr. Truscott's innocence. "
Here we have examples of suppressed evidence that might have proven the innocence of a citizen at trial. As a result a potentially innocent life is destroyed by the system. We have to await the decision of the Ontario Court of Appeal on the Truscott case to be conclusive about this.
We have, in the meantime, evidence that in Truscott' s trial prosecutors and police colluded to withhold evidence that did serious harm to a citizen's rights and freedom. That citizen was a 14 year old boy at that. It brings our system of justice into question. Why did they do this in the first place? To win at all costs?
What if the primary success factor of the legal system was measured by how well the police, prosecutors and judges were at "getting hard on crime" as Prime Minister Harper says he wants? Does that mean the system is successful if it gets a "win" by getting a conviction by what ever means it takes? Again at what cost will this be to our legal protections, the rule of law and the professional and independent role of the Bench, the presumption of innocence and due process?
I don’t know if that "win at all costs" attitude was the motivation in the original Truscott trial or the many other wrongful convictions that are now coming to light. But I do know if the test of a “successful” legal system is to get tough on crime and a conviction at all costs, that encourages the suppression of exculpating evidence. Then ask yourself, what kind of a chance will an ordinary citizen have in such a "justice" culture?
Imagine for a moment how vulnerable we all become in the face of such a system. The only real protections we have had so far is a qualified Bar along with independent Bench whose only master is a total dedication to a system based on the rule of law. If there is any equivocation of that dedication because it is fettered in any way by a political agenda of powerful people in the government, then, as Shakespeare said “…the state doth totter.”
Prime Minister Harper's inappropriate meddling in the Judicial Review Committee structure and process is inviting the state to totter. This is not some political posturing prank or a petty minded attack ad silliness. This recent action by the Prime Minister is designed and intended to increase the political influence on judicial recommendations and to disrupt the balance in the judicial review process. By the Harper government's own admission in Question Period on February 13, the existing system was working. (see my post yesterday).
Harper is now able to use his political discretion by accepting or rejecting the judicial appointment recommendations from the current review process. His recent political actions to extend his political influence into the judicial review committee itself are a danger and a threat to the freedoms of every citizen. It must not be tolerated in a free and democratic society.
Thursday, February 15, 2007
Wednesday, February 14, 2007
If the Judicial Review Committe is not Broken Why is Harper "Fixing" It?
This is an excerpt from Question Period February 13, 2007 on the appointment of judges by the Harper Conservatives. It is worth a careful read.
Hon. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.):
Mr. Speaker, within months of taking office, the Conservatives began stacking the bench with their friends: the former president of their party in Quebec, the Conservative co-chair from New Brunswick, a Conservative fundraiser from Alberta, and on it goes. These appointments were made by the former justice minister until we caught him with his hand in the cookie jar.
Will the new, moderate justice minister do what his predecessor refused to do and stop appointing Conservative Party hacks to judicial positions?
Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC):
Mr. Speaker, there may be some confusion in the hon. member's mind. I should point out to her that all the appointments that have been made by this government have been recommended by the judicial appointments commission that the Liberals set up. Every one of them were recommended by the members that they put on that board. What is their complaint?
HERE IS THE COMPLAINT!
My question is about the answer by the Hon Rob Nicholson on the source of his government’s partisan appointees to the bench. He says:
Here is the complaint Mr. Minister. If the system was working – and by your own admission in the answer above - then why change it? If you could get your preferred appointees recommended anyway, why change the process and compositoin of the judicial appointments committee?
BECAUSE the changes you made will result in ONLY your preferred candidates getting through the review process. You will not have to deal with ignoring or rejecting any other qualified appointment recommendations that do not fit with your ideological agenda.
You have rigged the system sir to predetermine the answers you want, and to ensure you only to receive recommendations for appointments that meet a partisan ideological political agenda. It is disingenuous to suggest this meddling with judicial appointment reviews is about safe communities sir!
It is simply a reprehensible abuse of political power for its own sake. Nothing more. Nothing less
Hon. Marlene Jennings (Notre-Dame-de-Grâce—Lachine, Lib.):
Mr. Speaker, within months of taking office, the Conservatives began stacking the bench with their friends: the former president of their party in Quebec, the Conservative co-chair from New Brunswick, a Conservative fundraiser from Alberta, and on it goes. These appointments were made by the former justice minister until we caught him with his hand in the cookie jar.
Will the new, moderate justice minister do what his predecessor refused to do and stop appointing Conservative Party hacks to judicial positions?
Hon. Rob Nicholson (Minister of Justice and Attorney General of Canada, CPC):
Mr. Speaker, there may be some confusion in the hon. member's mind. I should point out to her that all the appointments that have been made by this government have been recommended by the judicial appointments commission that the Liberals set up. Every one of them were recommended by the members that they put on that board. What is their complaint?
HERE IS THE COMPLAINT!
My question is about the answer by the Hon Rob Nicholson on the source of his government’s partisan appointees to the bench. He says:
“I should point out to her that all the appointments that have been
made by this government have been recommended by the judicial appointments commission that the Liberals set up. Every on of them were recommended by the members that they put on that board. What is their complaint?”
Here is the complaint Mr. Minister. If the system was working – and by your own admission in the answer above - then why change it? If you could get your preferred appointees recommended anyway, why change the process and compositoin of the judicial appointments committee?
BECAUSE the changes you made will result in ONLY your preferred candidates getting through the review process. You will not have to deal with ignoring or rejecting any other qualified appointment recommendations that do not fit with your ideological agenda.
You have rigged the system sir to predetermine the answers you want, and to ensure you only to receive recommendations for appointments that meet a partisan ideological political agenda. It is disingenuous to suggest this meddling with judicial appointment reviews is about safe communities sir!
It is simply a reprehensible abuse of political power for its own sake. Nothing more. Nothing less
Judicial Review Process Should Diminish Politics not Facilitate Politics
Here is an example of shallow understanding of the judicial review and appointment process. This columnist stretches facts beyond credulity for effect but adds nothing to understanding the implication of the Harper Cons recent changes to the judicial review committee make up and processes.
Lawyers are often political activists and even partisans because the people who go into politics make the laws. Little wonder they are interested. To think that donations to a single party by a lawyer should disqualify them from judicial appointment, as implied in this column, is folly in the extreme. To imply that an Executive Director of the Quebec Liberal Party who is said to have testified in the Gomery Commission that “about eight lawyers who campaigned for the Liberal Party in Quebec during the 2000 federal election were awarded judicial appointment" is pointless, trite and sophistic. What does that prove?
Judicial appointments are not “awards.” They are earned and not by virtue of political activities or party donations. The review committee process of citizens, siting judges and lawyers representing the profession are all there to ensure that does not happen. The process, to my knowledge, has been stringent and rigorous for applicants to qualify for a recommendation for appointment to the Prime Minister. It is that office along with the Minster of Justice who makes the appointments in the end result, not the review committees.
The problem with the Harper changes is he has altered the mix of membership and relative powers of the parties in the process. That change is clearly to accomplish Harper’s political ends of ensuring that he gets review recommendations that fit his preconceived view of more social conservatives for appointment to the bench.
By the way, when, in fairness to the representations in the column, when Anne McLellan was Justice Minister she also accepted a well known activist Progressive Conservative and a New Democrat lawyer appointed the the Queen's Bench in Alberta. Both were quality lawyers and have proven to be excellent jurists. It is not always partisan and many examples exist to prove that point, regardless of party.
If the review and recommendation process is apolitical the system has a better chance of working to ensure an independent judiciary. If the system is politicized, as in Harpers review process changes, an independent judiciary will be subject to more suspicion. That is something we do not need.
Thanks to freedom of the press so we can have the chance to read and rebut such opinion as in the Calgary Sun. I wonder if how long a socially conservative bench will tolerate such imprudence, even such as this blog posting, even if made in the name of freedom of expression?
Canadians should not have to be asking themselves such a question. Ever since the Mulroney changes to the judicial appointment review process in 1988 we have not had to wonder. Has Harper changed all that? I wonder!
Lawyers are often political activists and even partisans because the people who go into politics make the laws. Little wonder they are interested. To think that donations to a single party by a lawyer should disqualify them from judicial appointment, as implied in this column, is folly in the extreme. To imply that an Executive Director of the Quebec Liberal Party who is said to have testified in the Gomery Commission that “about eight lawyers who campaigned for the Liberal Party in Quebec during the 2000 federal election were awarded judicial appointment" is pointless, trite and sophistic. What does that prove?
Judicial appointments are not “awards.” They are earned and not by virtue of political activities or party donations. The review committee process of citizens, siting judges and lawyers representing the profession are all there to ensure that does not happen. The process, to my knowledge, has been stringent and rigorous for applicants to qualify for a recommendation for appointment to the Prime Minister. It is that office along with the Minster of Justice who makes the appointments in the end result, not the review committees.
The problem with the Harper changes is he has altered the mix of membership and relative powers of the parties in the process. That change is clearly to accomplish Harper’s political ends of ensuring that he gets review recommendations that fit his preconceived view of more social conservatives for appointment to the bench.
By the way, when, in fairness to the representations in the column, when Anne McLellan was Justice Minister she also accepted a well known activist Progressive Conservative and a New Democrat lawyer appointed the the Queen's Bench in Alberta. Both were quality lawyers and have proven to be excellent jurists. It is not always partisan and many examples exist to prove that point, regardless of party.
If the review and recommendation process is apolitical the system has a better chance of working to ensure an independent judiciary. If the system is politicized, as in Harpers review process changes, an independent judiciary will be subject to more suspicion. That is something we do not need.
Thanks to freedom of the press so we can have the chance to read and rebut such opinion as in the Calgary Sun. I wonder if how long a socially conservative bench will tolerate such imprudence, even such as this blog posting, even if made in the name of freedom of expression?
Canadians should not have to be asking themselves such a question. Ever since the Mulroney changes to the judicial appointment review process in 1988 we have not had to wonder. Has Harper changed all that? I wonder!
Is Harper's ecoTrust Really a Fiscal Imbalance Fund?
Is Harper taking his western base, particularly Alberta and Saskatchewan, for granted, yet again? Premiers Stelmach and Calvert are taking the Harper eco-Trust idea to task. They are calling for the funds to be distributed in a way that responds to solving the emission issues by focusing funds where the GHG problems are, like Alberta and Saskatchewan. Instead, the Harper Cons are proposing a per capita distribution and a pre-emptive promise to Quebec that is tied to elections, in Quebec and federally.
Quebec is the place Harper chose to announce a potential (subject to budget approval) funding for reduction of air pollution and GHG emissions. Quebec has to amongst the least offensive place when it comes to GHG emissions. They have Quebec Hydro and are very clean comparatively.
Politics is trumping sound policy and effective programming in this initiative so far. This is more about a back door delivery of “fiscal imbalance funds” and a political message to Quebec. Harper’s speech is tribute to “self” and a menu of the Cons concessions to Quebec in the past year, none of which I begrudge. Think UNESCO voice for Quebec, big cash into the 400 anniversary of Quebec City, and bridges, highways, water systems and airport expansions are the items Harper mentions in his “eco-Trust-me” speech.
The speech pays a nod to the different “energy profile” of each province and the different priorities they have. He notes the “solutions have to be customized” and that GHG “emissions have to be mandatory across the country.”
This all this distinctiveness in these provincial energy profiles, priorities and need for “customized solutions” it is hard to see the logic behind a per capita fund distribution. Unless the logic is to favour Quebec and Ontario because it is about where the votes are in puruste of a majority and as for the environment, well not so much.
All this happens at the expense of Alberta and Saskatchewan – yet again! I am sure Prime Minister Harper has heard the expression "The West Wants In?" Well a new version is emerging under the Harper government. "Why Are You Leaving the West Out?"
Harper is quickly becoming the closest thing we have seen to a centralizing Prime Minister since the reigns of Chrétien and Trudeau. Strange isn't is, what power will do to some people, and what they will do to retain it.
Quebec is the place Harper chose to announce a potential (subject to budget approval) funding for reduction of air pollution and GHG emissions. Quebec has to amongst the least offensive place when it comes to GHG emissions. They have Quebec Hydro and are very clean comparatively.
Politics is trumping sound policy and effective programming in this initiative so far. This is more about a back door delivery of “fiscal imbalance funds” and a political message to Quebec. Harper’s speech is tribute to “self” and a menu of the Cons concessions to Quebec in the past year, none of which I begrudge. Think UNESCO voice for Quebec, big cash into the 400 anniversary of Quebec City, and bridges, highways, water systems and airport expansions are the items Harper mentions in his “eco-Trust-me” speech.
The speech pays a nod to the different “energy profile” of each province and the different priorities they have. He notes the “solutions have to be customized” and that GHG “emissions have to be mandatory across the country.”
This all this distinctiveness in these provincial energy profiles, priorities and need for “customized solutions” it is hard to see the logic behind a per capita fund distribution. Unless the logic is to favour Quebec and Ontario because it is about where the votes are in puruste of a majority and as for the environment, well not so much.
All this happens at the expense of Alberta and Saskatchewan – yet again! I am sure Prime Minister Harper has heard the expression "The West Wants In?" Well a new version is emerging under the Harper government. "Why Are You Leaving the West Out?"
Harper is quickly becoming the closest thing we have seen to a centralizing Prime Minister since the reigns of Chrétien and Trudeau. Strange isn't is, what power will do to some people, and what they will do to retain it.
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.
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.
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