Vic Toews taking heat for attempting to fix a broken system for judicial appointments
Justice Minister Vic Toews wants to make some changes to how judges are selected. In particular, he would like a representative of the police to sit on the committee that vets nominees. For that he is being labelled as the biggest threat to the judicial nomination system since, well, ever! Given that the system seems to be broken, that's probably a good thing. To put things into perspective, let's compare two lawyers, Bonnie Croll and Mary Eberts. Both were in the running for a judicial appointment, but only one was appointed. One has had an active career arguing landmark cases, the other worked part-time and never actually argued a case. Did that factor into the decision, or the fact that only one of them was a close relative of a famous Liberal Party senator?
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.
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Comments
Important post, Steve. The police and other ordinary Canadians who see the results of Lib-style sentencing every day, and wish to see a more reasonable, sane approach to sentencing are tagged as a "special interest group", while the procedure which results in the over-representation of Liberal insiders/donors in the judiciary is treated as sacrosanct.
Vic Toews, on behalf of Stephen Harper's government, has the gall to listen to ordinary Canadians, including the police. It's not surprising that unelected representatives of the Embedded Ruling Tribe would consider his suggestions "disturbing".
Posted by: EBD at November 11, 2006 11:58 AM
Good work Steven. I assume you've been following this story from Halifax;
http://www.hfxnews.ca/index.cfm?sid=9406&sc=2
I wrote a letter to the editor and got an update; apparently the Nova Scotia bar association has also written to the Halifax News demanding an apology for the temeritous suggestion that judges might like to keep violent shits in prison before they get to murder someone. Now that's cozy; the bar association sticking up for the chief justice. Yeah, I'd trust this cabal totally....
Posted by: Dave at November 11, 2006 03:24 PM
The system is broken. Correct. Having the cops involved in the judicial appointment process is a good idea? Not so much.
Posted by: Mark at November 11, 2006 04:31 PM
For better or worse political appointments to the bench are a feature of every common law jurisdiction on earth. On the other hand, giving the police a say in the process is common only in Banana Republics.
One of the most important jobs of the judiciary is overseeing police conduct. I'm sure we'd all like to be able to pick a boss who's not going to watch us too close or come down hard when we screw up but that's usually not good for business.
I note that the last round of judicial appointments featured a number of names closely connected to the CPC. There is a hypothesis that the current horrendous backlog in appointments to the bench is due to a lack of conservative supporters who actually make the preliminary non-partisan "qualified" list. Consequently, there are a number of quiet patronage appointments being made to boards and tribunals to pad some resumes in quick fashion so as to give them the qualifications for the list. Perhaps some intrepid investigative reporter/blogger might do some non-partisan, un-biased digging around to see if there's any truth to that ?
Posted by: Nbob at November 11, 2006 06:09 PM
What is it about the Judicial 'system' that they cannot comprehend the words 'violent offender'????? I stupidly thought that the citizens of this country were to be protected from these people. Guess I was wrong--the only ones that have rights in Canada are the criminals, the more violent the more rights. We are jsut targets for these criminals. The word here should be accountability . If all informatin is not considered while sentencing then the Judicial System should be held accountable. As should Corrections Canada and the parole board.
I have no problem with police being consulted over Judicial appointments. After all, it is them that have to deal with these revolving door releases time and time again. So many times the criminal is back on the street before the policeman/wom,an have even filled out their report. Bail given to violent offenders--note the man in London Ontario who shot four people and was given bail--he has now disappeared. I have to wonder where these Judges have been living the last years--in a bubble?
Posted by: George at November 11, 2006 06:51 PM
Given the nature of the beast, there will be patronage and if it can be fixed, it should be.
However, what Toews is suggesting is adding another member to the committee, rather than using one of the existing member-at-large spots. What he proposes will add a patronage appointment to the process.
As for police being involved in the judicial selection process which translates into their actually having input into how justice is administered, I do not like that idea at all. Due to their role as front line enforcers of the law they have a strong bias in favour of conviction. I would be concerned about the police being formally included in the part of the process which actually has nothing to do with their mandate.
Posted by: Selma at November 11, 2006 08:20 PM
The police do something that the judges never do -they deal with the victims. Or the next-of-kin of the victims. They deal with it while it is still fresh and bloody.
In a nice, safe, sanitary courtroom, a weeping victim (or NOK of same) is just an unwanted distraction to the judge. And it shows in their sentencing -or lack thereof.
I'm all for having the police having a say in this. This isn't about cops picking people who won't investigate cops. There's no lack of agencies who just LOVE to investigate every little thing the cops do. Our cops are not "banana republic" cops -nor is our nation a banana republic -in spite of the best efforts of the Liberal Party of Canada (for one thing, it is too cold to grow bananas here :-).
This is about having people who deal in cold, harsh reality having a bit (stress the words "a bit") of long overdue input in selecting judges who tend to live in ivory towers. If there's anything to fear in this, it would be the possibility that the police appointees would be senior officers who have themselves become politicians (I worked for one, once).
Posted by: up north at November 12, 2006 12:03 AM
The "Real Women" organization listed a number of politicaly connected appointments last Feb. See their news item at http://www.realwomenca.com/press.htm#02_22_06 Actually read all of the items - they do their homework.
Posted by: lindsay at November 12, 2006 12:14 AM
Great post, Steve. Your sh*t shovelling arm must be getting pretty tired. Why not a bulldozer for the rest of the Librano crap?
Good point, up north, about the police dealing with the victims of criminal offenders, something the justices don't do. The police also have to deal, hands-on, with the criminal offenders, meaning being swung at, assaulted, sworn at, spat at, etc., another thing the judges don't have to deal with. They get the prisoner in the dock all cleaned up, in a suit, and, more than likely having been advised by their lawyer to say as little as possible, let alone curse at the judge.
As usual, the CPC is putting forward a common-sense partial solution to a boondoggle badly careening towards disaster and the Librano$ and their soft-in-the-head cheerleaders in the 'judiciary,' lawyers all, are crying foul.
G*D'S TEETH! as Glenda Jackson playing Elizabeth the First used to say when the universe was not unfolding as it should.
Posted by: 'been around the block at November 12, 2006 08:40 AM
I doubt that anyone would argue that changes need to be made, especially to the parole system and to the minimum sentencing provisions for violent or repeat offenses.
Judges are not supposed to become emotionally involved in cases which I suspect is difficult for them in many instances. They are supposed to read and apply the rule of law as objectively as possible.
This is why, for example, even in civil suits, anyone making comments, using noticeable body language in reaction to arguments or testimony or sometimes even theatrically rolling their eyes may be asked to leave the courtroom.
The job the police do is not an easy one but like many who see only the negative side of life, their view may be skewed in favour of conviction.
Enforcing the law and reading the law are two different things. Not everyone accused of a crime or responding to a civil suit is culpable, despite trial by media or the howling mob. The judicial system must be as fair as possible in order to preserve the principles of fundamental justice.
I'm sure that those who support the 'hang 'em high' frontier style of judicial interpretation would expect nothing less, should they find themselves on the wrong side of the law for whatever reason.
Posted by: Selma at November 12, 2006 09:08 AM
I agree with many of your comments, Selma, but what's "as fair as possible in order to preserve the principles of fundamental justice" in the system as it now stands?
I see no problem with having a highly respected and totally professional representative of the police sit on a committee that vets nominees for the judiciary. This person is not personally involved in any particular case before the courts and would probably be able to add a much-needed reality check to the judicial nomination system.
Posted by: 'been around the block at November 12, 2006 02:52 PM
If I recall correctly, Toews is only adding a police representative as 1 or 5 members on these advisory committees. Is that too much to ask? Hopefully, this will bar the most criminally friendly lawyers from getting access to a judicial bench. Layers won't be able to social engineer without a little sunlight on the practice.
Posted by: PlaidShirt at November 12, 2006 06:13 PM
PlaidShirt, I believe that's one policeman (or woman) out of eight members.
Selma, I, too, understand your point, but if nothing is done about our justice system as it currently stands I personally believe that howling mobs and frontier justice will become the norm. If I remember correctly, something like 10 Canadians are murdered every year by someone who simply should not have been out on the street.
To use the pendulum analogy (Oh Lord -I'm trying to talk like a smart person !), it's been swinging far too far in favour of the guilty -not the accused, but the guilty. If we don't put at least a partial brake on that, it's eventually going to swing far too far against the accused.
Posted by: up north at November 13, 2006 12:14 AM
Been Around the Block and Up North: Thanks for the comments re: my comments :)
I get a bit rhetorical sometimes because I am so concerned about the erosion of democracy which I see all around me. Nothing will ever be completely fair but I really don't think the problem is with the justices and to say they are 'friendly' towards criminals is unfair.
I think that something needs to change but I'm not convinced that it's the appointment process for justices. I support Toews on many things such as the plan to allow the Crown to request dangerous offender status for someone after their third conviction for a violent offense. To me, it is a fair policy and criminals have plenty of warning as well as the further protection that the optional request by the Crown allows.
I'm just not comfortable with adding a seat to the committees and I honestly don't see why police should be formally involved in the judicial appointment process, as their role in the system ends when a defendant goes to court, (aside from testimony of course). If a police person is appointed using one of the existing seats, I would have no problem with that, it's the formality of it that I don't like.
Perhaps it's time to look at the Criminal Code to see if changes could be made. I would like to see changes to the YCJA to beef up penalties for violent crimes, for example. I think that piece of legislation was a mistake and led to the proliferation of scofflaw and criminal youth. I'm not suggesting that all crimes by youth should be treated as adult cases, but I think most people are pretty fed up with things as they stand in that area, as it appears that most crimes are committed by people in their mid- to late teens if media reports are true (ha!)
I too am outraged by the ease with which repeat offenders seem to get back onto the streets. I suppose there is also the matter of where to put them all while they await trial. In Ontario, the courts are seriously backlogged and tens of thousands of cases are tossed every year because it is taking too long to bring cases to court. I imagine that the bench is under some pressure to hear as many cases as possible as quickly as possible, which is also not a good thing in my opinion.
Posted by: Selma at November 13, 2006 09:27 AM
I think you miss the point. The issue here is that there is a fundamental distinction between those who investigate crime and those who judge, and one institution should not have a say in who sits in the other institution. They should remain completely separate. Perhaps we should change the rules so governments have less discretion about who to choose, but at the same time, any system is going to be imperfect, and compared to pretty much every other country in the world, our system functions pretty well. It makes mistakes, but then so does your beloved conservative government.
Posted by: Andy at November 13, 2006 05:13 PM
'Where ya from, Andy? Outside of Canada?
The Conservative Government of Canada isn't yours? Well, if you're a Canadian, it is. There's only one Government in Canada, and the CPC is it!
Posted by: 'been around the block at November 13, 2006 05:21 PM
I hate to be picky, but last time I checked there are 10 provincial governments, 1 federal government, 3 territorial governments, and thousands of municipal governments. This federal government most certainly doesn't speak for me, nor the 64% of Canadians who voted for a different party in the last election.
Thankfully, this government is starting to alienate people. Afghanistan is blowing up in its face. Same-sex marriage is going to make people think that this government is intolerant, and is not focused on the same issues as the average Joe. It's Clean Air Act was an insult to Canadians' intelligence. Income trusts has pissed off many seniors and reduced its perception for being honest. Actions like changing judicial appointments are going to make the government look arrogant. They didn't receive a mandate to reduce judicial credibility, which this measure will surely do. They hardly received a mandate to do anything more than serve as an interim administration until the next election.
Posted by: Andy at November 13, 2006 11:43 PM
There are no "rumours" about the qualifications of Harper's judicial appointees. Nbob is simply lying. He knows all Harper's appointees have been fully qualified and he's saying otherwise. Of course, the Globe and Mail had been telling the same lie.
As Globe readers will know, this attack on Toews has nothing whatsoever to do with his committees or their composition. The Liberals are preparing to deny the government's right to appoint judges. They intend to have the Supreme Court arrogate to itself the right to appoint judges. This committee thing is merely a pretext and a promotional exercise. Enough alarmed headlines screaming that Harper is breaking the law by appointing judges! and the morons who read the Globe will believe there's something wrong, and welcome our infallible judges' interference.
Or such is the apparent plan. If Nbob were the insider he claims to be, he'd know a bit more about this. But of course, he is not what he claims to be, is he?
If he were, he'd know that it is unethical to impugn the competence or ability of a judge without grounds. He'd know that Madame Justice McLaughlin has committed a grave breach of professional duty for which she would normally expect discipline if not disbarment. He'd know he'd done the same himself.
Perhaps he does know that. It would explain why he's the only member of the Ontario Bar with no real name or business address, wouldn't it?
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Can I divert your attention to the yet unsolved mystery of Herbert Norman and his fellow-communist traitors?
Easy to dismiss it as old history but if the reds were not all dug out, their network is arguably stil functioning, for Joe Clark seemed as eager to continue the cover-up when a decent MP asked a parliamentary question in the mid-80s. Why?
I asked a Tory MP a few months back to renew enquiries, but after a long delay, he said he was 'unable to.' Who's pulling their strings?
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