Angry in the Great White North

From the Globe and Mail:

Justice Minister Irwin Cotler has handed the names of six potential Supreme Court Judges to the blue-ribbon advisory committee that will cut the list down to three.

At its first meeting in Ottawa's Chateau Laurier hotel Monday, the nine-member committee was told by Mr. Cotler that it has until Nov. 18 to come up with its short list, from which the minister will choose the new judge for the country's top court. He wants to have a new person in place by the time Mr. Justice John Major retires at Christmas.

The candidates' names are confidential, and the committee members had to sign written agreements that they will not spill the beans.

So six friends of the Liberal Party will become three friends of the Liberal Party. Still, I suppose it's an improvement.

But we can't know their names, so Canadians can't consider who is in the running. As always, we'll be told after the decision has been made and the appointment is official, so we'll be stuck with whomever our betters have decided we deserve. There are two members of the committee who are neither politicians, judges, nor lawyers who presumably represent all the rest of us. One is Chester Cunnignham, a Metis activist, and the Barbara Pollock from the University of Regina.

Is this process any better?

Tory justice critic Vic Toews has agreed to serve on the advisory committee, but yesterday he called the process short on accountability and transparency. "The minister controls the list [of candidates for the top-court position] from beginning to end and there's no substantive role for the committee to play," he said in an interview.

Mr. Toews said there should also have been a much more important role for the Commons justice committee, which will be able to question Mr. Cotler on his selection for the Supreme Court job, but will not get to ask questions of the nominee.

Not ask questions? Can't let people know who they are? Just how is it that they will be able to make any reasoned decision on how to cull the list?

And anyway, it doesn't matter, since the minister or prime minister can appoint anyone they want from outside the list, even outside the original long list:

However, in the Government's view the Governor in Council should retain the discretion - in exceptional circumstances as explained below - to appoint from outside the short list provided by the Committee. We are clearly mindful that any exercise of this residual discretion in anything other than exceptional circumstances would call into question our commitment to, and undermine the credibility of, this revised appointments process. It might even dissuade prominent members of the community from participating in a future advisory committee.

Accordingly, the question will be reasonably asked: in what circumstances would the Government take this exceptional step, in light of the longer term implications for the new process? In the Government's view, such an exceptional remedy arises from an appreciation of the risks in undertaking any new and untried process in such a critical issue. While it is difficult to anticipate all of the circumstances that might arise that would lead to such an exceptional step, it is only prudent to anticipate the possibility, for example, that a major breach of confidentiality might significantly undermine the credibility of the process, and pose possible harm to individual candidates or the Court itself. In such instances it would not only be the right of the Government, but its responsibility, to put a stop to such a prejudicial process, and make the appointment in the manner it has been done to date.

Cute. The reasons for ignoring the committee are undefined and open-ended. The only specific example they can come up with is if the confidentiality of process if breached. So as long as no one can see what is going on, they'll use the advisory process, but should Canadians get a peek at who might be making legal decisions that will affect the country for years or decades to come, then scrap the list, and go back to unilateral ministerial appointments.

Two things come to mind. First, it is the stick that keeps the advisory committee in line. If someone tries to work outside of Cotler's tight leash, then the committee is neutered and we don't start with a new committee, but rather default to the bad old way.

Second, what if the government is concerned that they don't like the short list? Do they leak the information, then claim that the process is compromised, and do things the way they've always been done?

You see, the new committee is clearly not considered important. If it were, then the system would form a new committee if the old committee was breaking the rules. The new system is supposed to address problems in the old way of doing judicial appointments. As feeble as it is, the fact that the default process in case of a problem with the committee is to go back to the old system tells me that Cotler's heart is not in this, that as far as he's concerned the old way of doing things was just fine, and he'll be ready with any excuse to do it that way.

One day, a Canadian government will be in place that will take seriously the problem of checks-and-balances, and will willingly hand over to Parliament powers held by the ministers in a manner that permanently limits unilateral ministerial powers. Today is not that day.

As far as I'm concerned, the process for making judicial appointments is as bad today as it ever was.