Angry in the Great White North

Vic Toews, the Minister of Justice, thinks police ought to be a voice heard in the selection of judges:

Toews, in his statement, ignored the rebuke, saying only the government is pleased to bring police on board by appointing a member of the law enforcement community in each province to advisory committees that screen candidates for the 1,100-member federally appointed bench.

“The voices of police are critical in our legal system, but they have never been represented in this process,” Toews said.

What rebuke? From lawyers, of course, who think the old system, in which elected officials (who are virtually all lawyers) appoint a team of lawyers to pick a lawyer to become a judge was perfect:

The president of the Canadian Bar Association, Parker MacCarthy, accused Toews of politicizing the process and Louise Botham, president of the Criminal Lawyers Association, said: “it is disturbing to say the least” that the Conservatives are giving a formal voice to a special interest group whose members are ideologically on the same page as the government and are often before the courts fighting for police powers.

“The credibility of the entire judicial appointment process is at risk,” said MacCarthy, whose 37,000-member organization issued a stinging news release. “Any steps that could affect the independence, impartiality and objectivity of the judicial appointment process require full-scale consultation across the entire spectrum of the justice system.”

Oh, please! Impartiality and objectivity? Let's hear about impartiality and objectivity from Mary Eberts, a well known Canadian lawyer whose name generates page after page of Google hits because of her remarkable legal career, quoted in the Ottawa Citizen in 2005:

A respected constitutional lawyer says her bid to become a federal judge was scotched because she "pissed off" prominent Liberal "godfathers" and the old boys' network that runs the legal profession. Mary Eberts, a successful equality rights litigator once seen as a dark-horse contender for the Supreme Court of Canada, urged the Commons subcommittee looking into federal judicial appointment reform to rein in the government's power to appoint partisan friends and financial supporters to the prestigious $219,400-per-annum judgeships. Ms. Eberts and fellow witness Peter Russell, a political scientist and expert on the judiciary, scoffed at the repeated assertions by Justice Minister Irwin Cotler and previous justice ministers that partisan connections play no role in the selection of judges. "I believe that a massive act of hypocrisy sits at the heart of our legal system because of the politicized nature of this process," Ms. Eberts said. "The political nature of the process lies chiefly in the reality that you cannot get through the process without a political mentor or team of mentors." Ms. Eberts said once one of the secretive committees that vet the qualifications of applicants has cleared a lawyer as "recommended" or "highly recommended" for the bench, that lawyer must still have a "political guide" to place that person's name before the regional or provincial patronage "bosses" of the ruling regime. "That person may be an active politician -- provincial or federal -- a retired (politician) or simply a legal 'godfather' with lots of clout because of personal or political ties," she testified. "But if you don't have such help, your name will sit on the list (for two years) until your (positive) clearance expires, and I have seen many fine lawyers get through the first part of the (vetting) process and then sit and wait for an appointment because they have no political mentor." Ms. Eberts argued the bias and lack of transparency and due process in the hiring process for federal judges -- which does not include interviews or give applicants an opportunity to find out their ratings -- "would be condemned ... if it was a hiring process in any other sector." The former governor of Ontario's law society, who has won awards and honorary degrees for her pioneering feminist and equality rights advocacy, said she was turned down by a vetting committee in 1997. "I was not 'recommended' and I never found out why, but I think I know why -- because I pissed off the wrong people" including prominent Liberal godfathers in the legal profession, Ms. Eberts said in an interview. "I felt devastated because at first I thought this is a judgment of my peers ... (but) then I have gradually come to think that it is perhaps more a judgment on the process than on me." Mr. Russell said he knows merit is not always the major criterion in the appointment of federal judges since a number of lawyers who the federal government appointed were rejected for the provincial bench in Ontario. Mr. Russell is a former chairman of Ontario's provincial advisory committee, which creates binding shortlists of candidates from which the provincial government must choose its judges. He urged MPs to give the federal advisory committees similar clout. "The current committees screen out the worst, but surely you could set your sights a little higher and go for a system that looks for the best people," he suggested.

Sour grapes? Or maybe she wonders why another lawyer, Bonnie Croll, was appointed to the bench in 2000:

On March 3, the law school was pleased to welcome back Madame Justice Bonnie Croll, who was Assistant Dean, Students, and Director of Admissions at the Faculty from 1996 to 2000. In that role, she initiated many projects such as developing a comprehensive financial aid scheme, creating a Career Development Office, and establishing a national pro bono program and Public Interest Advocacy Summer Fellowship Program. Justice Croll spoke fondly of her time at the law school, joking that her role helped prepare her for a career on the bench. In 2000, she was appointed to the Ontario Superior Court of Justice. At the beginning of her career, she struggled with the demands of work and family, choosing to work part-time - a choice that was, she says, unheard of in the 1980s. Justice Croll's private practice included working for Fraser & Beatty (now Fraser Milner Casgrain LLP) and Fasken Campbell Godfrey (now Fasken Martineau DuMoulin LLP). When asked how things have changed for women in the legal profession, Justice Croll said that things are better. However, she stressed that female lawyers still face challenges in balancing a legal career and a family, and encouraged all students to continue to work for improvements in this area.

So Croll works part-time, according to a lawyer friend of mine never argued in court, ends up in an administrative job at a university involving no actual practise of law, and then goes straight from there to the Ontario Superior Court?

Is Eberts on to something? Does the appointment system need to be shaken up -- fewer lawyers and more involvement from other aspects of the legal system not directly in line for judicial appointments?

Is this example one that suggests the Vic Toews is right? Are Mary Ebert's suspicions warranted? Well, it depends on whether you believe Bonnie Croll's appointment was because of skill and merit, or because of connections. Would it help you make up your mind if I told you that Bonnie Croll is the niece of Liberal Party Senator David Croll, an prominent member of the Liberal Party, an influence on Pierre Trudeau, and the architect of much of Canada's social welfare system?

Liberal Party friends and family have always done well when it comes to judicial appointments:

The judicial appointments are being put up for sale by the Liberal Government. This was revealed during the Gomery Hearings in Montreal, when one of the witnesses, Quebec Liberal organizer, Benoit Corbeil, let slip the fact that 8 or 10 Quebec lawyers, who worked in various capacities for the Liberal Party in Quebec during the 2000 federal election, were given judicial appointments after the election.

Further, it was learned that 13 other Quebec judges, appointed since the 2000 federal election, had donated money exclusively to the federal Liberal Party in the years immediately preceding their appointments.

However, these practices are not limited to the province of Quebec. According to the Ottawa Citizen (May 6, 2004), more than 60% of the 93 lawyers who received judicial appointments in Ontario, Alberta and Saskatchewan, after the 2000 federal election, had donated funds exclusively to the Liberal Party in the 3 to 5 year period prior to securing their appointments and their $220,000 per year salaries as judges. As well, a majority of these 93 lawyers had a previous association with the governing Liberals, serving the party in various capacities.

But it is Vic Toews who is a threat to the entire judicial appointment process. Sounds good to me.