Six candidates on Supreme Court short list

Secrecy and lobbying reaches fever pitch

Associated Press/CTVnewsnet

October 17, 2005

OTTAWA — Justice Minister Irwin Cotler has come up with a half-dozen candidates for the Supreme Court of Canada and handed their names to a blue-ribbon advisory panel for further vetting.

The identities of the potential judges remain confidential, however, and the panel members have been sworn to secrecy.

Francois Giroux, the minister's judicial affairs adviser, confirmed that Cotler met privately Monday with the nine-member committee to outline their mandate and hand over his preliminary list of six.

"He asked them to provide him with an unranked short list of three names by Nov. 18,'' said Giroux. "Only the successful candidate's name will become public.''

After the panel narrows the choices to three, Cooler will confer with Prime Minister Paul Martin, who will make the final decision on a judge to replace Justice John Major when he retires at year end.

It's the first time Ottawa has used such an elaborate process to appoint a judge to the top court. In the past, prime ministers have acted largely on their own, with only sketchy and informal consultation with the legal community.

The reforms brought in by Martin and Cotler stop well short of the public confirmation hearings that are the rule in the United States -- and that often transform judicial appointments in that country into a political tug of war.

Nevertheless, the question of who will succeed Major has sparked an intense lobbying campaign, especially among aboriginal groups who are hoping for the appointment of a first-ever native judge to the court.

"The highest court in the land should reflect all of the founding legal traditions,'' said Dianne Corbiere, president of the Indigenous Bar Association.

She noted that three seats are already reserved for Quebec, with its French civil law, while the six judges from the rest of the country are schooled in English common law.

Native traditions, however, have never been recognized in the same way.

"There are legal concepts that exist in indigenous nations that you cannot learn in the law schools of this country,'' said Corbiere. "An indigenous person would know how to access (them).''

A number of non-aboriginal legal heavyweights, including Peter Hogg, retired dean of Osgoode Hall law school, have backed the campaign.

Others, however, have expressed concern that the lobbying effort is politicizing the appointment process and compromising the merit principle.

Eugene Meehan, a former president of the Canadian Bar Association, agreed an aboriginal judge might provide a welcome perspective on issues like native land claims.

But breadth of experience is more important for a Supreme Court judge than specialized knowledge of one area, said Meehan.

"They have to deal with everything from A to Z, from abortion to zoning. If there is any court in the country where it is of supreme importance to get the very best person, this is the court.''

Major came to the court from Alberta, and by tradition his seat will be filled from one of the Prairie provinces.

Among the potential aboriginal candidates often mentioned in legal circles are:

* Murray Sinclair, who currently sits on Manitoba Court of Queen's Bench and co-chaired a provincial inquiry into native justice issues in the 1990s.
* Mary Ellen Turpel-Lafond, a former Dalhousie University law professor who now serves as a provincial court judge in Saskatchewan.
* Don Worme, a Saskatchewan lawyer who has also worked as counsel to Ontario's public inquiry into the deadly confrontation between police and native protesters at Ipperwash.
* Tony Madamin, an Alberta provincial court judge who has also presided over traditional aboriginal courts.

Arrayed against them are a number of highly qualified non-aboriginal judges who are also considered leading candidates.

They include Georgina Jackson and Robert Richards, both of the Saskatchewan Court of Appeal, Marc Monnin, chief justice of Manitoba Court of Queen's Bench, and Barbara Hamilton of Manitoba Court of Appeal.

The advisory panel can propose additional names to Cotler's list of six, if it thinks the minister has overlooked any worthy candidates. But it still must narrow the list to three in the end.

The panel includes four MPs: Liberal Anita Neville, Conservative Vic Toews, Joe Comartin of the NDP and Richard Marceau of the Bloc Quebecois.

It also includes Brent Cotter, dean of law at the University of Saskatchewan, Garth Smorang, president of the Manitoba law society, Alberta Metis activist Chester Cunningham and Barbara Pollock, vice-president of th University of Regina.

Allan McEachern, former chief justice of British Columbia, was named to the committee but dropped off for personal reasons. He has been replaced by Constance Glube, retired chief justice of Nova Scotia.