Harper's Judge of Judges

"[I]t is not merely of some importance but is of fundamental importance, that justice should not only be done, but should manifestly and undoubtedly be seen to be done." --Lord Hewart from Rex v. Sussex Justices, Ex parte McCarthy

What the learned judge was saying is that while it's commendable to come to the right conclusion, you must do so in such a way that it at least looked like you did it the right way.

The appointment of judges has always been tricky. Someone has to appoint them so the "trick" for governments has always been to appoint someone who looked OK while ensuring he or she is a "safe pair of hands for the government in power." Leaving aside the provincial court of B.C. (to which I'll return later), the federal government has always relied upon two resources. First, the public has a high regard for judges and assumes that those appointed will be fair. Secondly, and most importantly, most of the time, the general public has never heard of the guy or gal before.

It's not just that prime ministers, who in effect appoint whomever they wish, have always just rewarded the party faithful. Sometimes, as in the case of my classmate Tom Berger, an exception will be made. And sometimes the reason for appointment to the Supreme Court of Canada will have a political significance larger than just making room for a pal at the public trough.

Loaded appointments

First, a bit of background.

Amongst its powers, the Supreme Court of Canada decides constitutional issues that arise between the federal government and provinces, yet the judges are all appointed by the head of the federal government!

The argument has always been: "These men and women, being elevated to the big bench, are free from politics thus thoroughly independent."

Really?

Hearken back to the quote from Lord Hewart, above. Suppose you have a dispute with your neighbour and the judge is his brother. Would you accept the fact that he is fair-minded and that his adopting of the judge's robe erases all sense of family loyalty when judging is to be done? Not bloody likely, but that's what the provinces are supposed to swallow.

Probably the most obvious of loaded appointments was when Pierre Trudeau, in 1973, appointed Bora Laskin to be chief justice of Canada. Laskin was a scholar, an academic and in constitutional terms was a "federalist" as indeed most people appointed to the SCC are. But Trudeau, who had constitutional changes in mind such as patriating the Constitution from Westminster, knew that Laskin would state the federal case very strongly to his colleagues. Chief Justice Laskin lasted long enough to see Mr. Trudeau's dream of the constitution at home with a Charter of Rights and Freedoms attached.

Is it possible that an SCC bench appointed by an accepted impartial process would have also decided in favour of Trudeau's constitutional undertakings?

Of course it is. But re-read Lord Hewart, above.

Well planted

Perhaps the most obvious "planting" of a friendly voice in the SCC in recent times came in 1997, and because the prejudices of the man appointed were the same as most of English-speaking Canada, we (excepting me I might add) overlooked his clear bias.

Michel Basterache is an Acadian from New Brunswick and his appointment came at a time when federal politics was all a-stir about whether or not Quebec could secede and if so, on what terms. There was a vacancy in the SCC chamber and Jean Chrétien took the opportunity to appoint a francophone, not from Quebec, who was against Quebec separating.

Chrétien, in making the appointment, gave as a reason that Basterache had shown his loyalty to Canada by co-chairing the "yes" side of the Charlottetown accord debate. Just what that says about the loyalty of the hundreds of thousand of Canadians (nearly 70 per cent in B.C.) who voted "no" is a bit much for this Charlottetown opponent to stomach. In any event, the prime minister appointed to the SCC bench a man who was strongly biased on an issue before the court, and because most Canadians agreed with him, somehow the appointment was acceptable. This isn't quite buying a judge but damned near.

Harper's game, and BC

But the conundrum remains -- someone has to appoint judges, but who and under what, if any, constraints? Prime Minister Stephen Harper has an interesting thought. Set up a council to advise him, then stack the council with faithful Tories and "hang 'em high" reactionaries. This, evidently, is better than Harper just appointing pals. He can always respond to criticism by blaming the appointment on his "impartial" council. (In fact the minister of justice does the appointing but I'm sure I needn't remind you of who appoints the minister of justice.)

Some like the U.S. system, where the president's nominations must be approved by the Senate, with the Senate having the right to hold probing and highly political hearings. Many Canadians don't like the open politics of that system. (I think it's fine to make candidates demonstrate their fitness for office but I'm clearly in a minority.)

Not for the first time British Columbia leads the way with a highly workable system for appointing provincial court judges.

First off, lawyers apply for the job and lay their careers out for inspection by the Judicial Council of British Columbia, which is made up thusly: nine members, as designated by section 21(2) of the Provincial Court Act. The chief judge is the presiding member or chair, with an associate chief judge as alternate presiding member. The attorney general appoints four lay members, one of which is traditionally a judicial justice of the peace, and by strong tradition all are non-political. The remaining members of the judicial council are the president of the Provincial Court Judges Association, the president (or a designate) of the B.C. Branch of the Canadian Bar Association, and a lawyer appointed by the Law Society of B.C. This council recommends candidates to the Cabinet, which has the last word, and while that makes it a political decision, notice the fine, though hugely important, line between the political leader submitting a nomination and an independent council recommending one. There is no reason whatever why a similar process could not apply to federal appointments not just to the Supreme Court of Canada but to the Federal Court, Provincial Supreme and Appeal Courts.

It won't happen because Stephen Harper wants to load the Supreme Court of Canada with, frankly, friendly right-wing Tories.

Leave it to the judicial council

We all remember how a Republican Supreme Court of the United States abandoned ancient precedents and with hopelessly twisted logic made George W. Bush president over Al Gore. It's this power over the top court that Harper covets.

If the system is reformed by having a "loaded" council, the selection always will be the prime minister's, which is to say always political.

On the other hand, under the British Columbia system, it's the council that makes the recommendation and while Cabinet still has the final say-so, to refuse such a candidate would take more political courage than most cabinets could muster. On that point and to sum up, when I was in Cabinet, the name of the son of a Dave Barrett cabinet minister -- one the Socreds particularly disliked -- came forward. There were some rumblings to be sure but none of us wanted to be seen nixing a judicial council recommendation because of raw partisanship. He was appointed.

Ottawa should look to British Columbia for guidance, but to do so Ottawa would break a long tradition of rejecting anything it didn't think of first, especially if it arises west of the Rockies.

Related Tyee stories:

• Has Harper Really 'Evolved'?
• Why A-G Oppal Must Resign
• Make Justice Swift and Cheap