National Post

Wednesday, July 07, 1999

Liberals won't be opening system of appointed judges
PM opposes any changes: Another study criticizes Canada's method of filling the Supreme Court

Luiza Chwialkowska
National Post

The Chretien government is satisfied with the existing closed-door appointment process for Supreme Court judges and opposes a U.S.-style public confirmation procedure, a spokeswoman for the federal justice minister said yesterday.

A report released yesterday by the Institute for Research on Public Policy, a non-partisan think tank, denounces the current appointment procedure as "shrouded in vagueness, unsubstantiated rumour and gossip," and as "incompatible with a modern federal democratic constitution governed by the rule of law."

The report calls for public input and parliamentary participation in choosing Supreme Court judges who "exercise a power as great as that of the federal Cabinet.

"Canadians should be able to learn about, see, and evaluate the candidate before his or her appointment becomes fait accompli," states the report entitled Merit Selection and Democratization of Appointments to the Supreme Court of Canada.

Line Chabot-Racine, spokeswoman for Anne McLellan, the Justice Minister, said Ms. McLellan was travelling in Europe on business yesterday, had not seen the report, and could not be reached for comment.

However she said Ms. McLellan has previously made it known that she is satisfied with the current process.

"As the minister has already said, the process has been in place since I don't know how many years and it's successful and it's going really well," said Ms. Chabot-Racine. "The minister consults senior judges, the attorney-general, law society representatives, senior members of the bar, and well informed persons in the region from which the candidate is from."

The IRPP report recommends the establishment of a nominating committee that would present the prime minister with short list of candidates to fill vacancies as they arise, and for the introduction of a parliamentary confirmation procedure similar to the U.S.-style Senate confirmation hearings.

But the proposals are unlikely to find a sympathetic audience in the justice minister.

"Minister McLellan agrees with the prime minister when he says that Canada must avoid the U.S.-style confirmation process," said Ms. Chabot-Racine.

Jean Chretien, the Prime Minister, wrote in the December issue of the National, a magazine published by the Canadian Bar Association, that he opposes the U.S.-style system of public confirmation hearings.

"It would limit the choice of excellent candidates as many would not want to undergo the ordeal of public and partisan-motivated attacks," wrote Mr. Chretien.

However, Jacob Ziegel, law professor emeritus at the University of Toronto and author of the IRPP report, rejects Mr. Chretien's argument, stating that potential judges should be required to undergo public review because their views and values influence the lives of all Canadians.

"It is precisely because of the intensely political role played by the Supreme Court judges in applying and interpreting the Charter as well as the rest of the constitution, that it is critical to inject a democratic and balancing note in the appointing process," he wrote.

Currently, the prime minister, on the advice of the justice minister, appoints all judges to the Supreme Court. The Supreme Court Act requires that three judges come from Quebec, and that appointees be either judges of a superior provincial court or lawyers of at least 10 years standing at the bar of a province. By convention, Ontario is also entitled to be represented by three judges, the Maritime provinces by one, and the Prairie provinces and British Columbia by two.

Unlike provincial judicial appointments, there is no advisory committee to screen candidates to the top court.

In 1985, the Canadian Association of Law Teachers and the Canadian Bar Association recommended a system of committee nominations, as did a 1995 report commissioned by the Canadian Judicial Council. A Senate confirmation procedure was suggested in the 1978 report of the Ontario Advisory Committee on the Constitution, and in the failed Bill C-60 introduced by the federal government in the same year.

In this latest report, Prof. Ziegel states that members of Parliament have been "slow to react to the steady erosion of Parliament's authority," since the 1982 Canadian Charter of Rights and Freedoms enhanced the powers of the court.

But changes in public opinion may eventually move elected officials to act, he wrote.

"The mood of acquiescence is changing and Canadians are beginning to appreciate the important roles of personalities and judicial philosophies in the interpretation and application of the Charter norms," the report states.

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