Thursday, November 07, 2013

"The Attitude" morphs into "The Monkey Wrench!"

Rocco "The Attitude" "Monkey Wrench" Galati

Top court to hear Senate case without Nadon
Quebec's third justice will not be at hearings, raising questions among experts about representation and split decisions

Kim Mackrael, Ottawa
Sean Fine, Toronto

Canada's top court will hear arguments on reforming the Senate without a full slate of judges from Quebec, a rare scenario for a case that could have significant national implications.

The Senate reform hearings are scheduled to begin Tuesday, less than a week after senators voted to suspend three of their colleagues without pay over allegations that they made improper expense claims. The controversy over their expenses has drawn unprecedented attention to the Red Chamber and contributed to growing calls for its abolition.

The Supreme Court will consider a series of questions from the federal government next week, including the constitutional implications of Senate elections, fixed terms for senators and the abolition of the institution. But it will do so with only two of the three judges that are normally appointed from Quebec, raising questions about how representative the court's decisions will be.

Justice Marc Nadon was appointed to fill the third Quebec seat earlier this year, but has stepped aside as he waits for his colleagues to decide whether he qualifies for the job. It is unclear if a Quebec judge can be appointed to the Supreme Court from the Federal Court of Appeal.

"Obviously this is the kind of issue where it would matter most to people to have the three Quebec judges present," McGill University law professor Robert Leckey said. Reading between the lines of some previous federalism cases, Professor Leckey said he sensed a "Quebec voice" attentive to provincial interests. "It's clearly a disadvantage to be missing a Quebec member."

Having eight judges hear a reference case also raises a problem of what to do in the event of a tie. Normally, the party that appeals a lower-court ruling needs to obtain a majority, to win the case. "In a reference, we don't have any rules for what happens when there are four judges on one side and four on the other side," McGill University law professor Fabien Gelinas said.

However, there is a precedent for looking at a Senate case with only eight judges. There were just two Quebec judges, and an eight-member bench, the last time the Supreme Court decided a Senate reference case, in 1979. The ruling did not explain the absence of the third Quebec judge.

The challenge to Justice Nadon's appointment has created another issue, as well. The court will hear a reference case on the legality of his appointment in January. Adam Dodek, a law professor at the University of Ottawa, said the decision to give high priority to that case could delay an eventual ruling on Senate reform - which is expected some time next year.

The Senate expenses controversy has become a political liability for Prime Minister Stephen Harper, who has long said he wants to reform the Senate, but has found himself on the defensive amid revelations that his former Chief of Staff gave Senator Mike Duffy a $90,000 cheque to repay questionable housing expenses.

In an effort to quell public anger on the issue, Mr. Harper advocated harsh sanctions against Pamela Wallin, Patrick Brazeau and Mr. Duffy, all senators he appointed to the Red Chamber and who are now under police investigation in connection with their expense claims.

On Wednesday, the Saskatchewan government introduced a motion calling for the Senate to be abolished, a symbolic gesture that nonetheless makes the province's position clear as the federal government considers how to proceed with possible reform.

Saskatchewan also repealed a law that would have allowed the province to bring forward Senate candidates for the federal government's consideration. Premier Brad Wall said Wednesday that he no longer believes meaningful reform will take place and doesn't want to lend any more legitimacy to the Red Chamber by supporting Senate elections in Saskatchewan.

And then there was this .....
Nadon furor sparks call for revised process

By Cristin Schmitz
October 25, 2013 Issue

Opposition MPs want the federal government to depoliticize future appointments to the Supreme Court of Canada by giving the senior judiciary and organized bar a role in picking and vetting the candidates.

In the wake of Prime Minister Stephen Harper’s contentious appointment of Justice Marc Nadon to the Supreme Court on Oct. 3, NDP justice critic Françoise Boivin told The Lawyers Weekly she will ask the Commons justice committee to consider reforms aimed at propelling only those candidates widely seen as the most qualified on to the shortlist for the Supreme Court.

Justice Nadon is a respected and experienced former supernumerary Federal Court of Appeal judge, but critics charge that the prime minister appointed the maritime law expert more for his conservative judicial philosophy than for the skill set he brings to the highest court.

Boivin said Supreme Court appointments must not be politicized.

“I have too much respect for the legal system, and the justice system, to play petty stupid politics with it,” said the Gatineau, Que., MP and labour lawyer who was the official Opposition’s representative on the five-MP “Supreme Court appointments selection panel” which winnowed down the government-supplied longer list to an unranked shortlist of three.

In Boivin’s view, a major weakness of the present appointment system created by the Conservatives is that a majority government (which gets three MPs on the selection panel) can vote to put a candidate’s name on the shortlist without any support from the two opposition MPs — who are bound to secrecy on the committee’s deliberations.

“I’m trying to remove the impact of sheer [government] power through the numbers [of government MPs on the panel] because I figure that should not be the case for such an important nomination,” she said.

Liberal MP Irwin Cotler told The Lawyers Weekly the appointment system should be “more representative and inclusive.”

“The Supreme Court is really the pillar of our constitutional democracy and you want to ensure that you protect the integrity and the independence of the judiciary and that the judiciary, as an institution, does not get politicized,” he said.

In 2005 when Cotler was justice minister in the Paul Martin government, he proposed major administrative reforms to the appointment of Supreme Court judges that would bind the prime minister to choose — except in “the most exceptional circumstances” — from a confidential shortlist of three candidates approved by an ad hoc nine-person regional advisory committee. The changes called for a retired judge chosen by the Canadian Judicial Council and a law society representative on the committee, as well as a representative from the provincial attorney general, one MP from each recognized party in the Commons, and two eminent lay people from the province or region from which the appointment was being made. That committee’s unranked shortlist would be accompanied by advice to the prime minister detailing the candidates’ strengths and weaknesses.

“The whole idea was to remove any politicization from the process,” Cotler said.

Boivin said the selection panel is not currently permitted to add its own names to the long list of candidates. “It is the list of the government and it is the nomination of the government,” she said. “I think we should have more input into the creating of the list.”

Another problem, she said, is that the justice minister doesn’t share with panel members the results of their consultations within the legal community and with provincial governments, and why certain names were put on, or were left off, the long list of candidates. “All that process should be made very transparent” so that “we can be reassured that the people that are in our list are really the top people who should be in nomination for such an important position,” said Boivin.

Boivin added that giving lawyers and judges a say in compiling a list of candidates for appointments to the provincial courts of B.C., Quebec and Ontario, for example, has resulted in manifestly merit-based appointments, and minimized the impact of ideological and partisan political considerations in those provinces.

She also noted that the Supreme Court selection panel is barred from ranking the three jurists on the shortlist it presents to the government. The upshot is that the prime minister can easily pass over the candidate(s) with all-party support for one who is approved only by government MPs.

There is a danger, therefore, that the present process could be used as window dressing for questionable appointments, said Boivin.

“You don’t want to feel like you’re just a puppet in the hands of the government just to give good credits to the whole thing,” she said. “I want to be able to say…I am very at ease with the [shortlist’s] three recommendations” to the prime minister.

Cotler noted the ad hoc committee of MPs which publicly questioned Justice Nadon on Parliament Hill October 2 had less than two days to prepare for the hearing.

The government knew months ahead that Justice Morris Fish would leave in August, yet Justice Nadon was not appointed until two business days before the Supreme Court’s fall session opened.

Not only should the justice minister add more time between the nomination and appointment, he should also publish a protocol itemizing who was consulted in devising the list of candidates, as well as the detailed professional and personal criteria on which the candidates were evaluated, Cotler said.


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