Judicial appointments process should be reviewed -- but won't be

On June 3, there was a motion put forward in the House of Commons by Mr. Richard Marceau, Bloc MP for Haute-Saint-Charles:

That the House denounce the recent remarks made by Mr. Justice Michel Robert stating that it is acceptable to discriminate on the basis of political opinion when appointing candidates to the federal judiciary and that it call on the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to create a special subcommittee with the mandate to examine the process for appointments to the federal judiciary and make recommendations for reform, with the primary goal of eliminating political partisanship from the process, by October 31, 2005.

Mr. Marceau went on to quote the data printed in the Montreal Gazette (and first revealed in this blog over a week earlier) that 60% of Quebec judicial appointments went to key Liberal supporters.

He suggests reducing the number of members of the selection committee appointed by the minister of justice be reduced from three out of the seven members, and that the ability of the minister to select an appointee who is not on the "highly recommended" list be constrained. But that's just his recommendation -- the motion calls for a subcommittee to study the problem.

Justice Minister Irwin Cotler then delivered a speech defending the current process, and I urge you to go and read it. It's a good speech, but I think there is a blind spot here, in which the government refuses to acknowledge that the process has resulted in politicized appointments, something that Justice Michel Robert thinks is just fine. Mr. Cotler will not be voting in support of the motion:

Accordingly, because of this I will be voting against this motion, which I regard, taken as a whole, as being inappropriate, uninformed, unconstitutional and prejudicial to the independence of the judiciary and the responsibility of Parliament. Indeed, I am very concerned about the trafficking in innuendo in relation to the judiciary over the past few months.

The vote happened yesterday, and true to form, the Liberals voted against it, and the Bloc, the NDP, and the Conservatives vote for it, for a final vote of 157 to 124 in favour of the motion.

Of course, the motion is not binding, but as the fellow who first discovered the disturbing trend in judicial appointments, it's nice to know that I've made some sort of impact. Now if we could actually make the government responsive to the wishes of the elected representatives, then the impact would actually matter.

[Cross posted to small dead animals]

Canada's Supreme Court and Medicare -- An opportunity for activism

A court case that could change medicare in Canada is in front of the Supreme Court of Canada:

The Supreme Court of Canada will render judgment tomorrow in a case that could have far-reaching implications for the future of medicare.

A Montreal doctor and a patient, who waited almost a year for a hip replacement, argued that waiting lists in the publicly funded system have become so long, they violate the Charter of Rights' guarantee to life, liberty and security of the person.

If the court agrees with their complaint, governments could suddenly be forced to open the door to a new private health care system to operate alongside the public system.

Philippe Trudel, the lawyer for the patient, said, "The issue at hand today can be boiled down to one question: Can the state keep people from obtaining the medical services that they need?"

Pretty stark question when put that way. Here's what the court can do, or so says Senator Michael Kirby, who presented to the court in this case:

He said there are three likely scenarios as to how the court could rule: maintain the status quo; allow a parallel private system; or, as a compromise, require governments to provide a so-called "care guarantee" to patients on how long they have to wait for treatment in the public system. Provinces that did not meet the benchmark would have to pay for the patient's treatment in another province or the United States.

This bugs me. The third option is a legislative solution. Suddenly the Supreme Court would be creating a law ex nihilo, giving it the name "care guarantee" and setting down the rules for how the law works.

In my opinion, the proper role for the court is to answer the question on the limit of the state's power to manage a private citizen's health care choices, and especially to prevent a citizen from getting health care at all. This is a profound question, and worthy of the court's attention.

But for the court to tell Parliament how to solve the problem? Again, this is the job of legislators -- 300 elected Canadians versed in the law, supported by civil servants, and bound by an oath to serve. Once the court decides on the limits of the power of the state, Parliament will have its boundaries within which to fashion a solution. I'd rather they try than nine unelected, unaccountable, unrepresentative judges, especially with the hints of judicial appointments being politically motivated raised during the Gomery Inquiry.

Another news blackout -- the Cecilia Zhang murder

The performance of the Canadian justice system in the Cecilia Zhang tragedy will happen without Canadians being able to see:

Today, Min Chen, 22, the man accused of the 9-year-old's murder, will begin hearing evidence against him when a preliminary hearing begins in a Brampton courtroom.

The hearing before Justice Peter Wilkie, scheduled for 15 days throughout June at the A. Grenville & William Davis Courthouse in Brampton, will be held under a complete news blackout.

No reason is given for the blackout. No politics appear to be involved. No other trials are related to this case, the police think Chen worked alone and his has been the only arrest in the case.

So why the blackout? Admitted it is just the preliminary hearing, but I worry about the trial itself.

To spare us the gruesome details, perhaps? How much worse can it get? A nine-year-old girl is taken from the house and the murdered, and her decomposing body is found five months later. Was she sexually assaulted?

To protect the family? Why? What questions are being raised? For instance, how did he know the girl was in the guest room that night, he regular room being used by the girl's grandfather visiting from China? Was it just a lucky break that he went into the right room? Maybe the explanation is simple (he did know the family, and was friendly with the boarder who lived in the home), but with a publication ban, how will we know?

To protect Chen? Again, why? Who is he, besides a foreign national in Canada on a student visa? Does he have connections in China? Police from mainland China help in the investigation. What information did they turn up? Can it be trusted? Are we going to be allowed to know?

Or is it to protect the police and the prosecution? With the heat from the Karla Homolka debacle, law enforcement and the justice system have had serious questions raised about their integrity and their competency. Are we going to see publication bans raised as a matter of course in Canada?

BEEP-BEEP-BEEP -- Watch out, that's Cotler backing up

[Hat tip to Andrew Coyne]

It's probably a good thing that Liberals aren't fitted out to beep loudly when they back up.

Justice Minister Irwin Cotler has called a meeting of experts to discuss how the selection of federal judges can be improved.

Talks with leaders of judicial advisory committees from across Canada are tentatively planned for early June.

But Cotler says he first requested the brainstorming session long before claims of related cronyism rocked the already teetering Liberal government.

"I asked for this some time ago - before all this broke," Cotler said in an interview with The Canadian Press.

Before what broke? I thought nothing broke at all. Mr. Cotler assured us that everything was fine, and that we were bothering him:

When asked if he was bothered by [allegations of Liberal lawyers being favoured for judicial appointents], Cotler became impassioned.

"What bothers me is when I hear allegations of corruption of the judiciary...What bothers me is that people should make any kind of insinuation that any appointment is based on any other considerations than merit."

One way to get this bothersome issue to go away is to restrict appointments from the "highly recommended" list. Potential appointees are ranked unacceptable, recommended, and highly reommended. Justice ministers have always reserved the right to choose from the recommended and highly recommended list, since that gave the the most freedom to reward friends.

But I don't think that's enough. Based on what Benoit Corbeil told the French press, members of the selection committee were on the lookout for good Liberal lawyers. Under those circumstances, the committee member could sing the praises of the "right" choice without saying anything about politics, and sway an unsuspecting minister into rewarding the politically active lawyer. Worse yet, the selection committee insider and a less-than-honourable minister could conceivably agree on code words to highlight the politically correct choices.

The selection committee needs to be watched or sequestered, or perhaps candidate files need to be numbered prior to being evaluated in order to avoid knowing anything personal about them (including gender and race, for example). It is my level of distrust that makes me consider such unwieldy solutions. Somehow, I don't think Mr. Cotler has such a radical idea in mind. I think he thinks if he backs up just enough, this issue will pass him by.

Number crunching the judges -- Prince Edward Island

Why review Prince Edward Island? Because of what Mr. Justice Gordon Campbell, a PEI Supreme Court judge, had to say about the appointment process:

A former provincial Liberal Party president and chairman of several election campaigns, Judge Campbell said that some critics cling to a "ridiculous" belief that politically active lawyers always keep one eye trained on a judgeship.

"I was involved in politics because I loved it," said Judge Campbell, who was appointed in 2001 by former prime minister Jean Chrétien's Liberal government.

"In PEI, politics is in your blood. It's the provincial sport. Nobody is looking at whether they will get this or that reward...

"I find it really offensive when people say later that you did it for gain," he added.

Nobody is looking? Maybe not. Since 1995, 4 individual have been appointed by federal ministers of justice to the bench in Prince Edward Island. Of course, since 1993, the Liberal Party has been in power. Here is the break down of these appointments:

• total judges appointed: 4
• number of appointees making financial contributions: 3
• total amount of money donated: $1759.73
• total donations to the Liberal Party: $1759.73
• total donations to other parties: $0.00

I wonder if Justice Campbell would find anything offensive in these numbers.

Admittedly, PEI is a tiny sample, and I would normally not have done this analysis, because with 4 data points, any generalization is highly suspect. But then Justice Campbell had to say that this suggestion of political manipulation of judicial appointments is "ridiculous".

You can see why I had no choice.

Political appointment of judges

From the Globe and Mail:

Scanning a list of every judge on the Newfoundland bench, former Conservative justice minister John Crosbie rhymes off their prior political affiliations.

"Jim Adams, he was a good Liberal," Mr. Crosbie says. "Doug Cook, another good Liberal. Bob Wells, he was a PC elected provincially. I appointed him myself." And on it goes, until Mr. Crosbie sums it up: "I would say that just less than half were very active politically."

While Mr. Crosbie emphasized that most on the list became excellent judges, his summary highlights the fact that who you know and which party you support can be an inescapable fact of life when it comes to landing a federal judgeship.

While this looks bad at first glance, some people think the process is not as bad as all that:

But Mr. Justice Gordon Campbell, a PEI Supreme Court judge with an extensive background in politics, said critics of the appointment system are missing an important point.

A former provincial Liberal Party president and chairman of several election campaigns, Judge Campbell said that some critics cling to a "ridiculous" belief that politically active lawyers always keep one eye trained on a judgeship.

"I was involved in politics because I loved it," said Judge Campbell, who was appointed in 2001 by former prime minister Jean Chrétien's Liberal government.

Perhaps he is right, but it still doesn't explain why the skew should be so heavy in favour of Liberal lawyers. If politically active lawyers were being selected on merit and their politics were not even known to the minister, then you'd expect a more randomized distribution of party affiliations.

But instead, you see Liberal affiliation in over 90% of the judicial appointments in Quebec and Ontario among judges who's political affiliation is known.

And the selection of good Liberals might make for mediocre judges:

For many critics, Mr. Justice Paul Cosgrove of the Ontario Superior Court stands out as a poster boy for the problem. A former Liberal cabinet minister, he was appointed to the bench in 1984 by the Liberal government of John Turner, and now faces a Canadian Judicial Council inquiry involving allegations of biased rulings.

Judge Cosgrove was one of a batch of appointments made in the dying days of the Turner government that were criticized for being blatantly political. The outcry led to reforms in the late 1980s to reduce the role of patronage. Few, however, would claim the system is immune to political manipulation.

Indeed, Mr. Crosbie said patronage provides indispensable oil to the machinery of a political party. "I don't think there is any real desire in government to completely eliminate it. If you are going to get people to support and work for you, there has to be some attraction for them," he said in an interview.

Some attraction? Since when was a seat at the bench, dispensing judgments that affect people's lives, something to be passed out as a reward? The American's have it right -- the judiciary is the third branch of government, equal to the executive and the legislature. In the British model, the judiciary is a tool of the executive, and even though words are said today about it being independent, the selection and appointment process show it to be otherwise:

The process does weed out the least competent candidates. But rather than being restricted to the names of the very best contenders, the final lists include everyone deemed either "highly recommended" or "recommended."

[T]here is nothing to stop the government from passing over top-rated candidates in favour of faithful party members who are less qualified.

Mr. Justice Jack Major of the Supreme Court of Canada explained how this can happen. "There may be 15 applications and they approve five or six," he said in a recent interview. "Eventually, you build a body of approved candidates who also happen to be supporters of the party in power. The committee endorsement makes it much easier for the minister to appoint a friend."

Number crunching the judges -- Ontario

Just before election day in 2004, the Liberals were polling 32% in popular support in Ontario (the data is found in one of the polling subpages of CBC's Canada Votes 2004).

Apparently Liberal popularity amount Ontario lawyers is much higher. Looking at the 152 names of judicial appointments in Ontario since 1993, I've found the following:

• 49% of the names of judicial appointees that I felt confident that I could resolve from the donations database donated to at least one party since 1993


• the total donation amount was $62,992.31, for an average of $850.30 per lawyer who donated


• the amount of donations to any party other than the Liberal Party was $7038.58


• since 1993, the Liberal Party was the recipient of 89% of the dollars donated by lawyers in Ontario who ultimately received judicial appointments

If Irwin Cotler is right and the decision is based entirely on merit, wouldn't you expect a more random distribution? As it is, it appears that you are either apolitical, or a Liberal supporter, if you are a judge in Ontario. Of course, we don't know how many of the judicial appointments that did not appear in the donations list might have donated time instead of money, or came from firms that boosted the Liberals.

Minister Cotler might be right, and the political donations of lawyers are not considered when judicial appointments are made. But even if that was true, it seems like the lawyers don't beleve it. It certainly appears that at least the lawyers believe that making a donation to the Liberal Party is the right thing to do if you want to be appointed to the bench. If that's the case, it doesn't look like the Liberal Party is trying too hard to clear up that misconception.

Of course, the other explanation is more sinister.

Is something odd here? You be the judge**. Personally, I think my idea for an Oxner Commission is looking better all the time.

** By that, I don't mean donate to Liberal Party!

Canadian blogging credited in the House of Commons

Well, almost. Conservative Party Leader Stephen Harper's speech to the House of Commons yesterday (11-March-2005):

Hon. Stephen Harper: The Liberals have undermined Canadians' confidence in our political system and even manipulated our judicial system.

The Liberal Party of Canada, like the Government of Canada, is a threat to Canadian democracy.

When this was raised in the House, the Minister of Justice said that he will hear no evil, see no evil, speak no evil. He is apparently not open to any investigation into this potential corruption of our judicial selection process. In fact the minister keeps claiming, in spite of the claims of his own party officials, that appointments are made strictly on the basis of merit.

I would point out that research by journalists and citizens has revealed that 60% of lawyers appointed to the bench in Quebec since 2000 made donations to the Liberal Party. It is frankly hard to take the Minister of Justice or the Prime Minister at their word when they say that politics has nothing to do with judicial appointments. [emphasis added]

OK, so neither my name nor the name of my blog are actually mentioned explicitly, but if Andrew Coyne says Stephen Harper was refering to Angry in the Great White North, then that's good enough for me.

For those who might not have been following it, Mr. Harper is refering to the report in the Montreal Gazette of 7-May-2005 (the journalists) and my report revealing the same pattern of donations and appointments two weeks earlier on 26-April-2005 (the citizens).

Wow, the politicians are reading my stuff. Now I'm just a bit freaked by that.

Fishing for information on "good" Liberal lawyers

From back on April 29, a detail that I don't think was reported in the English language press. With regards to the appointment of lawyers to the bench in Quebec, Benoit Corbeil had alleged in a press interview that such appointments were made as a reward to Liberal party workers. From the Globe and Mail:

Mr. Corbeil said the people who received the cash payments were part of a larger group of party supporters who worked at the Liberal Party's headquarters in Montreal during the election campaign. He said most of that larger group were lawyers, engineers or accountants from major firms, which he said hoped to reap federal contracts after the election.

"They don't want to get paid right away, they want to get paid later," he said, noting that many of the lawyers have since been named to the bench.

But what wasn't reported was the process by which these lawyers were selected, and the role Corbeil played in it:

Benoit Corbeil, former general manager of the Liberal Party of Canada in Quebec, affirms that a member of the selection committee of the judges telephoned to him with some questions to know if a lawyer had militated well for the party.

"He asked to me whether such or such lawyer had devoted much time to the party," Mr. Corbeil during a discussion with la Presse indicated, this week. "When it was the case, I answered by the affirmative. A few weeks later, I noted that the lawyer in question had been appointed judge."

Mr. Corbeil must testify the next week at the Gomery commission.

This is an automated translation of the French article with some corrections by me. I know Justice Gomery is focusing on a narrow interpretation of his mandate, but if Corbeil has names, including of one or more people on the selection committee, he needs to be interviewed under oath in a public venue.

The idea that someone on the selection committee was pumping Corbeil and who knows who else for information about the quality of a candidate's political activities is frightening. Suddenly the words of Prime Minister Paul Martin and Minister of Justice Irwin Cotler that the selection of judicial candidates was "assessed and evaluated by an independent peer review" seem far less reassuring. Sounds like at least one person on this independent committee was working hard to make sure politics was factored into the so-called merit-based selection process.

Did the judge know? I call for the Oxner Commission

Quebec Justice Claudette Tessier-Couture has already been named by Gilles Duceppe of the Bloc Quebecois as a judge that needs to be investigated. The implication is that she is one of the lawyers that Benoit Corbeil said was rewarded for all their work for the Liberal Party with a judicial appoinment.

He name has come up in the testimony of Benoit Corbeil, but in a different context:

Mr. Corbeil said he informed the co-presidents of the Quebec wing's electoral commission Mr. Gagliano and Claudette Tessier-Couture, that the workers in question had been paid. He said he did not specify where the money came from [the money came from Groupaction president Jean Brault, who was flush with cash he received from the Sponsorship Program], but said it would have been clear to them that the money did not come from normal channels. ''People in the electoral commission knew very well that we had financial difficulties,'' he said. Ms. Tessier-Couture has since been named a Superior Court judge.

If she knew prior to being sworn in as a judge of a major criminal undertaking that had yet to be reported, I can't imagine she would be considered eligible for the position. Moreover, Mr. Corbeil is insinuating that Ms. Tessier-Couture gave tacit approval for these criminal acts by not expressing concern.

And now she's a judge.

I expect more and more media interest to be directed at Ms. Tessier-Couture, and then at other judges. This is not a good time to be a judge anywhere in Canada.

We may need yet another commission since the Gomery Inquiry's mandate does not extend over judicial appointments.

If I might suggest someone to lead it: Judge Sandra Oxner, President of the Commonwealth Judicial Education Institute in Halifax. She's done a lot of work with third world countries which have required help in setting up independent judiciaries (in places like the Caribbean, the Philippines, in several Arab countries).

I hate to say it, but I think Canada might need to consider calling on Judge Oxner and her skills in helping countries emerging from their status of corrupt kleptocracies with compliant judiciaries. As humiliating as it is, Canada seems to be not much better shape right now.