Tuesday, November 21, 2006

On Nov. 10, 2006, the nation's leading judges -- including Canada's Chief Justice, Beverley McLachlin -- took the unusual step of rebuking Justice Minister Vic Toews. His sin -- committed, we are told, against the principle of an "independent advisory process for judicial appointments" -- was to suggest changes to the membership of judicial advisory committees to allow for the inclusion of police representatives.

The Chief Justice's comments might leave Canadians under the impression that the current process of appointment, being "independent," is necessarily related to the principle of judicial independence. It is not. Judicial independence means that judges are free to discharge their duty of adjudicating each case solely on its merits, without the influence of fear or favour from any source. It has little to do with the process of appointment. Judicial independence is not per se compromised by how one becomes a judge, but by what happens after one becomes a judge. (For that reason, judges in Canada enjoy security of tenure and no small measure of financial security.)

Even if, for the sake of argument, one accepts that the appointments process bears on the principle of judicial independence, the current appointments process, which the Chief Justice lauds for its "independence," does not measure up. The entire process is carried out in secret. While the business of judges is done in the sunlight of open courts, the appointment of judges is done in the dark. It may be "independent," if "independent" means free of political influence. But no one knows for sure except the participants, and they're not telling.

Moreover, our fleeting glimpses into the process of appointing judges in this country suggest that it is deeply affected by partisan considerations. The Gomery Inquiry received testimony from lawyers who, having campaigned for the Liberal party, were appointed to the bench. One of Canada's foremost constitutional litigators, lacking a political "sponsor," was rejected for appointment. Last year, Nova Scotia's outgoing chief justice acknowledged that some appointments were being made solely on political considerations at the expense of qualified candidates lacking nothing except political connections.

This is not to suggest that Canada's judiciary is composed exclusively of political hacks. For all we know, most of Canada's judges were appointed on merit. The point remains, however, that the judicial appointments process is not "independent." It consists of a handful of jurists and a few laypeople canvassing a list of names, then making recommendations to the minister of justice and the prime minister, who can ignore them and appoint anyone they wish. As such, political patronage continues to stain our legal culture.

The Chief Justice's criticisms are even more curious in view of her past criticism of subjecting nominees to the scrutiny of a parliamentary hearing, so that their merits -- indeed, their "independence" -- can be assessed. This would, she has argued, lead to a politicization of the appointment process, the argument being that the mere fact of a hearing presupposes that an appointment entails a political choice that requires scrutiny. The problem, of course, is that any process by which the executive can employ judicial appointments to repay political debts inevitably will become politicized.

Mr. Toews' decision to force the process from the shadows by seeking wider input seems a good first step. So long as Canada lacks meaningful parliamentary scrutiny of Mr. Toews' appointments, he can and should consult as broadly as possible about potential nominees. Despite the objections of the criminal defence bar, there is no obvious reason why such consultation should not include law enforcement agencies -- although it should not stop there. A myriad of valuable insights that would not necessarily emerge from a committee of jurists could come from a range of community members.

The preferable path would, however, be for Mr. Toews to include this as part of a larger reform package that would include genuine parliamentary vetting of nominees.

In the interim, Canada's foremost judges who are concerned that their role not be politicized might wish to steer clear of opining on matters that have become, by convention and Canadian institutional habit, so thoroughly political. Otherwise, they risk being taken as that which they insist they are not.

- Russ Brown and Moin Yahya are assistant professors, Faculty of Law, University of Alberta.
© National Post 2006