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THE SQUALOR OF OUR JUDICIAL APPOINTMENTS

The system we use to appoint judges in Canada has recently been exposed for what it is, sordid and reprehensible.

The judicial appointments are being put up for sale by the Liberal Government. This was revealed during the Gomery Hearings in Montreal, when one of the witnesses, Quebec Liberal organizer, Benoit Corbeil, let slip the fact that 8 or 10 Quebec lawyers, who worked in various capacities for the Liberal Party in Quebec during the 2000 federal election, were given judicial appointments after the election.

Further, it was learned that 13 other Quebec judges, appointed since the 2000 federal election, had donated money exclusively to the federal Liberal Party in the years immediately preceding their appointments.

However, these practices are not limited to the province of Quebec. According to the Ottawa Citizen (May 6, 2004), more than 60% of the 93 lawyers who received judicial appointments in Ontario, Alberta and Saskatchewan, after the 2000 federal election, had donated funds exclusively to the Liberal Party in the 3 to 5 year period prior to securing their appointments and their $220,000 per year salaries as judges. As well, a majority of these 93 lawyers had a previous association with the governing Liberals, serving the party in various capacities.

Prime Minister Paul Martin and the current Justice Minister, Irwin Cotler, are only part of a long series of Prime Ministers and Justice Ministers, both Liberal and Conservative - depending on which is in power, who have used judicial appointments as "pay back" for contributions to their political parties. For example, Chief Justice Roy McMurtry, of the Ontario Court of Appeal, even though he was Attorney General for 10 years under Conservative Ontario Premier, Bill Davis, was "owed" by the Liberal Party because he supported the then Justice Minister, Jean Chretien, on the passing of the Charter of Rights in 1981. It was a shrewd political move by McMurtry to back the Liberal Government on the Charter. The "pay back" by the Liberals to Mr. McMurtry, has been spectacular. First of all, he was appointed Canadian High Commissioner to Britain between 1985 - 1988. He was then appointed, without any judicial experience, to be Associate Chief Justice of the Ontario Court of Justice 1991- 1994. Next, he was appointed Chief Justice of that court 1994 - 1996, and finally, Chief Justice of the Ontario Court of Appeal 1996 to the present time. Were these appointments based on merit or ability? Not a bit. McMurtry has never been known for his legal acumen, but rather for his political shrewdness, which he has transferred to the Bench, as evidenced, among other decisions, his glib and superficial judgment in June 2003 in favour of same-sex marriage. No evidence was required or referred to in that judgment - it was just a political decision hiding behind his judge's gown.

Justice Minister Cotler also has used his position to appoint two very mediocre judges from the Ontario Court of Appeal, Rosalie Abella and Louise Charron, to the Supreme Court of Canada in 2004. Ms Abella had the additional asset of being the wife of one of Mr. Cotler's good friends, Irving Abella. Both Mr. Cotler and Mr. Abella were former presidents of the Canadian Jewish Congress.

These two female Supreme Court judges came to the bench with two other assets as well - their "progressive" left wing views, and their marked willingness to promote them in their judgments, regardless of established law or common sense. These characteristics served Mr. Cotler and the Liberals very well in the December 2004 same-sex marriage reference case.

Further Liberal Judicial Appointments

According to the Lawyers Weekly (May 20, 2005), Mr. Cotler has also appointed his former executive assistant and senior policy adviser, Michael Brown, and also Randall Echlin, the former general counsel to the Ontario Liberal Party (who was also a contributor in 2002 to Allan Rock's Liberal leadership campaign), to the Ontario Superior Court of Justice. Cotler also appointed to the Alberta Court of Queen's Bench, Marsha Colleen Erb, a Liberal fundraiser and personal friend of his fellow cabinet minister, Anne McLellan. Other lucky Liberals appointed to that court by Mr. Cotler, include, John J. Gill, co-chair in 2004 of the Alberta Federal Liberal Campaign; Vital Ouellette, who ran for the provincial Liberals in 1997 and 2001, and federal Liberal candidate, Bryan Mahoney, who lost twice to Conservative Myron Thompson (Wild Rose), Alberta. As a consequence of these appointments, the Alberta Queen's Bench now consists of a happy, well paid Liberal family.

In short, the Liberals have appointed many friends and financial supporters to both the provincial Superior Courts and to the Federal Court. For example, the latter court has been "graced" by the appointment of former Liberal, New Brunswick's Finance Minister Edmond Blanchard, and Yves de Montigny, Cotler's former Chief of Staff. Georgette Sheridan, who lost her Liberal Saskatoon seat in 1997 was appointed to the Tax Court of Canada several years ago. These are only examples of some of the political appointments to the Canadian courts by the Liberal Government. These appointments are blatant patronage at the public's expense.

Appointment System of Judges Must Change

The appointments outlined above make it clear that Canada can no longer continue with its 19th Century approach to judicial appointments, adapted from Britain, by which the Prime Minister, based on the recommendations of the Justice Minister alone, makes the decision. Britain has had the good sense to change this archaic approach, so why hasn't Canada? The answer is probably because the judicial appointment system is too useful a tool for the Liberal Government to forsake. Not only does it provide pay-offs for the party, but also it ensures that the government's policies will always be backed by a grateful Liberal court.

The Dishonest Minister of Justice

We now know that Minister of Justice, Irwin Cotler, cannot be trusted to speak honestly. It is actually very disturbing to hear some of the statements falling from his lips which bears no relation to the truth. For example, Cotler continues to spread falsehoods about our system of judicial appointments. He has argued, especially over the past year, that the Prime Minister has the constitutional responsibility for the appointments to the Supreme Court and cannot allow the appointments to be finalized without his approval. This is an absurd argument. The method of appointing judges to the Supreme Court of Canada is not a part of our constitution either in the 1982 Charter of Rights or the British North America Act (BNA) of 1867. The present system of appointments has been developed by useage or practice, not law, as the Constitution makes no reference as to how judges are to be appointed. The Supreme Court of Canada was established merely by an Act of Parliament in 1875. There is absolutely nothing, therefore, to prevent Parliament from amending this Act, for example, to change the Court's powers and jurisdiction, or if it wished, to legislate a more democratic way of making appointments. Alternately, the government could merely change the system of appointments without even bothering to legislate the change.

Supreme Court of Canada Most Powerful in Western World

Canadian courts are the most powerful and political in the western world. It is urgent that curbs be placed on their power. There is a need for confirmation hearings so that the public can scrutinize the nominees' legal philosophy, history, and their perspective on the Charter, as well as their associations with the party in power. A limit must be placed on their term of office so that these judges may no longer sit on the courts for years, or decades, molding society to suit their personal preferences.

Until these changes in the judicial appointments are made, Canadians seeking justice dispensed by independent, impartial judiciary, are not likely to find it here with few exceptions.

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