Seek­ing jus­tice

Valley Journal Advertiser - - OPINION -

Not only must jus­tice be done; it must also be seen to be done.’ That time-honoured ju­di­cial adage has taken on a new mean­ing in At­lantic Canada when it comes to the com­po­si­tion of pro­vin­cial Supreme Courts.

In an open let­ter to Canada’s jus­tice min­is­ter last Wed­nes­day, a group rep­re­sent­ing At­lantic trial lawyers called on Ot­tawa to fol­low its new di­ver­sity and merit-based process to en­sure trans­parency and fair­ness with ju­di­cial ap­point­ments.

For ex­am­ple, since new cri­te­ria was an­nounced last year, three of the five ju­di­cial ap­point­ments made in Nova Sco­tia, New Brunswick and Prince Ed­ward Is­land came from the same area of pri­vate prac­tice - in­sur­ance de­fence - and from the same re­gional law firm – Ste­wart McK­elvey.

At the time of last week’s let­ter, four of the six fed­er­ally ap­pointed Supreme Court and Court of Ap­peal judges on P.E.I. are for­mer mem­bers of this same re­gional firm. Two more P.E.I. jus­tices were added last Fri­day and one was from that same firm. The va­cant po­si­tion of chief jus­tice was filled as well, by a sit­ting judge with nine months ex­pe­ri­ence on the bench - also from Ste­wart McK­elvey.

Lawyers are call­ing foul. Brian He­bert, pres­i­dent of the Hal­i­fax-based At­lantic Trial Lawyers As­so­ci­a­tion, ar­gues that since judges play a fun­da­men­tal role en­sur­ing pub­lic con­fi­dence in our le­gal sys­tem, di­ver­sity of gen­der and race on the bench is im­por­tant, but so is le­gal ex­pe­ri­ence and per­spec­tive.

One se­nior Char­lot­te­town lawyer said last week’s ap­point­ments are the talk of the P.E.I. le­gal com­mu­nity. No one is crit­i­cal of the in­di­vid­u­als but many are con­cerned that the two P.E.I. chief jus­tices and five of eight judges are from Ste­wart McK­elvey. That firm also gets much of the le­gal work from both lev­els of gov­ern­ment, per­haps be­cause past pres­i­dents of the pro­vin­cial Lib­eral and Pro­gres­sive Con­ser­va­tive par­ties work at Ste­wart McK­elvey. Cur­rent Char­lot­te­town MP Sean Casey and for­mer MP Shawn Mur­phy were from that firm.

Crit­i­cism isn’t just com­ing from the le­gal com­mu­nity. Last month, a let­ter writer sug­gested the P.E.I. bench is so bi­ased from po­lit­i­cal pa­tron­age ap­point­ments that Ot­tawa should fill any va­can­cies with can­di­dates from out­side the prov­ince to im­prove the im­par­tially of the court.

The lack of di­ver­sity on court benches re­sulted in a pub­lic plea from an At­lantic Mi’kmaq chief who said a more bal­anced ju­di­ciary is crit­i­cal. The chief says the courts must re­flect a va­ri­ety of per­spec­tives from so­ci­ety, and it is time that the per­spec­tive of the In­dige­nous Mi’kmaq is avail­able to the courts. For a jus­tice sys­tem to be truly just, it must be rep­re­sen­ta­tive of the di­ver­sity of the pop­u­la­tion it serves.

Many in the At­lantic le­gal com­mu­nity ques­tion the fair­ness in­volved in the se­lec­tion of judges, a process it­self shrouded in mys­tery. The fed­eral gov­ern­ment should fol­low its new rules and cri­te­ria a lit­tle more dili­gently.

Ot­tawa might score points for its ap­point­ments to the Supreme Court of Canada, but it is get­ting a fail­ing grade for se­lec­tions to At­lantic supreme court benches.

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