When putative Justice Minister Peter MacKay announced that Justice Clement Gascon of Quebec would be appointed to sit on the bench of the highest court in the land, barely anyone noticed. After the kerfuffle caused by the man he would replace, Federal Court Judge Marc Nadon who was dumped after a Supreme Court ruling that deemed him unqualified to represent Quebec on the Court, Gascon was indeed a safe bet for the government. But last week, Mackay and his boss Stephen Harper, found their selection the subject of yet another controversy. This time not with regards to the judge himself, but rather for the lack of any nomination process or debate over the winner of the most prestigious job that the Canadian legal profession has to offer.
You see, for the past 10 years, first under the Grits and then under the Tories, Canadians and their parliament have become accustomed to having some say in terms of who gets to defend their constitutional Charter of Rights and Freedoms. While the federal cabinet may have the final say, a new parliamentary process was put in place that allowed a panel representing the opposition parties in the House the opportunity to submit a short list of three approved candidates for any opening on the Supreme Court to the Prime Minister, based on a long list of potential candidates given to them by the Department of Justice. Subsequently, the PM’s choice for the job, would appear before the Justice Committee to be subjected to an American Senate style cross-examination before he or she could take their place among the Judges in red robes. Although the whole mechanism seemed like it had been borrowed from the U.S. system of constitutional checks and balances, it was welcomed by most in the legal community on the basis that it provided a sorely needed measure of transparency to what had previously been a discretionary and highly secretive process of Supreme Court judicial appointments (or for that matter the federal courts and provincial appellate courts)
The trouble is none of this is entrenched in statute or the constitution, which means that a Prime Minister, especially a notoriously publicity shy one, could always revoke it. Yet another example of a structural flaw in our democratic process that has little to do with Stephen Harper’s style of governance.
When eminent constitutionalist Irwin Cotler (who will sadly be leaving the House in a year) put the question to the Justice Minister his suspicion that the government had bypassed the whole Parliamentary consultation in favour of their mysterious ways, he received a letter that confirmed that the government was no longer playing ball with Parliament on this file.
What made the Feds change tack? After all they had introduced the public part of the Committee process back in 2006 in an attempt to give the Supreme Court greater visibility in Canadian politics. The answer, of course, is best expressed by that old saying, once bitten, twice shy. The Conservative were none to impressed with the investigative journalism of Sean Fine, the Court correspondent for the Globe and Mail, who back in May, either through a leak on the appointment committee (something all the members of the Committee strongly deny) or good old fashioned shoe leather (as they say in journalism parlance) broke the Nadon nomination before it was official, thus embarrassing the government which in turn had to abandon their preferred candidate, but only after a major smack-down from the Supreme Court and an un-heard-of attempt by the PM to smear the Supreme Court’s Chief Justice over her supposed breach of convention for advising against Nadon. So rather than learn from their mistakes and allow for greater debate about Justice Gagnon (whom, by all accounts, was a shoe in for the job) the Harper team panicked and called off the whole thing, citing a need to reconsider the process and a “breach of confidentiality” by the Committee.
This story is problematic for two reasons. First, it’s blatantly an attempt by the executive of the federal government to remove one of the few checks on its judicial powers from the legislative branch (i.e. Parliament). Secondly, not only is the Prime Minster keeping Parliament in the dark on this matter, he is also apparently kneecapping his Justice Minister (and people wonder why Harper has no rivals in his government) Peter Mackay, who traditionally had much more of a say in Supreme Court nominations, but perhaps due to his difficulty managing the file recently, has lost the confidence of the Prime Minister.
Whatever the policy or politics of the decision by Harper, what this all amounts to is even greater control over the levers of government, in his hands, and one less obstacle for the powers of an already all-powerful executive.
Other articles by David DesBaillets
Session 41 of the House goes into overdrive with Harper, Duffy, and the 2015 Election all on the order paper
Harper misses the point on calls for public inquiry into missing aboriginal women
New book and Scottish separatism resurrects the ghosts of the 1995 Quebec Referendum
Canadians are being kept in the dark by Harper government on CETA negotiations
Has the Harper government declared war on Canadian charities
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