Sunday, May 11, 2014

Why the selection of federal judges is severely flawed: The Vic Toews case study!

Former Public Safety Minister Vic Toews looking for the hacker group Anonymous to protect you!

What do these two men have in common? Secrecy!

Good Day Readers:

If there are two things the Harper government abhors it's full disclosure and activist judges. What you don't know about Vic Toews' appointment:

(1) Did he apply or was he simply nominated by Stephen Harper? When?

(2) How were the five members of Manitoba's Federal Judicial Advisory Committee selected? When? Why? By whom? For how long? Do they receive remuneration and if so how much?

(3) Could any Tom, Dick, Harry and Jane apply to be on Manitoba's FJAC? How?

(4) When and where was the selection meeting(s) held? What was the score? Was it a 4-0 slam dunk? Although there are 5 members its Chair, Queen's Bench Justice Brenda Keyser, was stripped of her vote by, yes, Vic Toews in 2006 while he was federal Justice Minister

(5) What would have happened if the vote had ended in a tie?

(6) Were there any other candidates and if so who? Why are they not identified?

(7) Was Mr. Toews called to appear before the FJAC to answer questions and if no why not?

(8) Why did the FJAC meet behind closed doors?

(9) Since taxpayers will be responsible for picking up the cost of "the Toews experiment," why didn't the Selection Committee hold an open hearing with provision for public input?

(10) A conspiracy theory aficionado are we? What proof do you have a meeting of the Federal Judicial Advisory Committee ever took place?

This is a sampling of the questions the public does not know undoubtedly there are others. Why does the judiciary feel the need and insist on conducting itself like a secret society? In both the Toews and Nadon appointments they were handed to the public as fait accomplis by which time it was powerless to do anything.

In the case of "Justice" Toews, the public were then "treated" to a silly, farcical swearing in ceremony. Was it really a coronation in disguise? Under the current system you'll never know.

 As the article below suggests, if some of the unnecessary veil of secrecy were removed from the selection of Supreme Court of Canada Justices maybe, just maybe, Harper versus McLachlin could have been avoided.

Is it secrecy simply for the sake of secrecy at taxpayer expense? Surely there must be a better way? It's 2014 not 1420 folks.As currently done it really is a pony and donkey show.

Clare L. Pieuk
Secrecy and the Supreme Court: Time for a little sunlight?

By Jeff Lacoix-Wilson
Friday, May 9, 2014
Beverley McLachlin, Chief Justice of the Supreme Court of Canada, delivers a speech in Ottawa, Tuesday, February 5, 2013. McLachlin insisted Friday there was nothing wrong with how she and her offices consulted with the federal government regarding a presumptive nominee to the high courts's ranks. (Photograph by Fred Chartrand/Ottawa Citizen).

The political dustup between Prime Minister Stephen Harper and Chief Justice Beverley McLachlin over the Conservative government’s ill-fated Supreme Court nomination might have been avoided if Supreme Court appointments were carried out in a more transparent way, some legal experts say.

A little more daylight would allow the public to decide if Harper’s accusations about McLachlin had merit, or whether her explanation of giving advice to the justice minister was sensible.

What happened?

On May 1, the National Post reported that Conservative sources claimed McLachlin had lobbied against the prime minister’s plan to appoint Marc Nadon to a vacant Quebec seat on the Supreme Court. The court, however, issued a statement saying McLachlin was consulted and had merely flagged a question 
about eligibility. In a highly unusual move, Harper’s office then issued a statement of its own saying Justice Minister Peter MacKay thought it “inadvisable and inappropriate” for the prime minister to take a phone call from McLachlin after she “initiated” contact with MacKay, and added that the prime minister didn’t take her call. The implication was that the chief justice had overstepped her role.

Counter-punching, McLachlin’s office put out a timeline showing her consultation took place long before Nadon was even nominated. The opposition called on the prime minister to apologize for undermining the court and McLachlin personally. The entire contretemps occurred in the aftermath of a March Supreme Court finding that Nadon did not, in fact, meet the Quebec-specific requirements to sit on the top bench.

How are Supreme Court justices chosen?

A bit mysteriously. The prime minister names the members of the nine-person top court, but the means of arriving at that choice have varied over time.

To-date, Harper has appointed five judges. He chose the last three (and tried to appoint Nadon) through a process in which the Justice Minister consults privately with the Attorney General of the province involved, and with unspecified legal experts. The public can submit comments to a government website. The Justice Minister then compiles a list of candidates to be reviewed, in private, by a selection panel of five MPs: three Conservatives, one Liberal and one New Democrat. This “selection panel” provides a private short list, unranked. The prime minister then chooses his nominee, and the nominee appears before an ad hoc parliamentary committee, some of whose members are also on the selection panel.

In the cases of Justices Michael Moldaver, Andromache Karakatsanis and Richard Wagner – and Nadon – the parliamentary hearing took place just two days after the announcement of the nominee. Within a day or two of the hearing, Harper appointed his nominee.

Are there other rules?

The Supreme Court Act stipulates that at least three of the judges must be from Quebec: the court needs judges familiar with Quebec’s civil law system. It is convention that the remaining positions are divided thus: three from Ontario, two from western Canada, and one from Atlantic Canada.

So what’s wrong with the process?

“There has been a lack of transparency, an absence of parliamentary input, and very little by way of public involvement,” says Liberal MP Irwin Cotler, a former Justice Minister.

“There appears to be secrecy for secrecy’s sake,” agrees Adam Dodek, a Professor of Constitutional Law at the University of Ottawa. “I don’t see justification in making the process itself secret.”

His colleague, Carissima Mathen, a Law Professor with a special interest in the court, goes farther: “I don’t know why a long list of candidates shouldn’t be general knowledge.”

How could judges be chosen?

Opinions vary in the legal community, and between political parties. Not all are convinced more transparency would strengthen the court.

But Dodek believes it is needed. He suggests the federal government publish a set of guidelines that spell out the qualifications for appointment that govern how the PMO and the justice minister make their selection.

“Such a document may have alleviated the controversy of what’s gone on with Chief Justice Beverley McLachlin,” Dodek says.

An arm’s length advisory committee, with equal representation from the parties, and from outside experts and the public, could identify candidates and give the Justice Minister an unranked short list to consider. A report on its work would be made public, including who was consulted “by office if not necessarily by name.” (While the prime minister would not necessarily be bound by the short list, he would have to explain to the public if his or her ultimate choice differed from the advice given.)

Public hearings could be held via a parliamentary committee with sufficient time to prepare, and the Jinister of Justice would also be a witness, Dodek suggests. The committee would be given the time needed to submit a report, slowly the process down for more critical reflection.

Dodek compares the current process with students cramming last minute for an exam. “Frankly, it’s a dog and pony show,” agrees Mathen.


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