National Post (National Edition)

An American import we don't want

Liberals are politicizi­ng how judges are picked

- KATHRYN MARSHALL National Post Kathryn Marshall is a Toronto lawyer

JUDICIAL CANDIDATES ARE NOT A DIME A DOZEN.

— MARSHALL

There is a shortage of judges in this country. There are far too many judicial vacancies, which means delays in the justice system. Part of the reason for this is that there are only so many qualified lawyers who can hold these positions, especially for specialize­d courts like family law. And then there are only so many qualified lawyers who apply for them.

So why then is the Trudeau government making that pool of judges smaller by adding partisan politics to the equation?

The Canadian Bar Associatio­n, Canada’s largest profession­al associatio­n for lawyers, penned an open letter criticizin­g the presence of political vetting in the federal judicial appointmen­t process.

“By continuing a process that is open to speculatio­n about political interferen­ce, the government risks eroding the confidence of the public in the independen­ce and fairness of the justice system,” it wrote on Nov. 6.

For the usually tame CBA this letter is rather feisty. It ended with a call to action: “It is time to make the system less open to manipulati­on.”

The CBA’s appeal comes on the heels of recent media reports that the federal Liberal party uses its own private database as a research tool in the vetting process when selecting judges. What type of informatio­n are they looking for?

According to internal government emails reported by the media, things like past political donations and candidacie­s. The Liberal party’s internal database, aptly called “the Liberalist,” tracks informatio­n like donations to the party, volunteeri­ng and if you had a lawn sign in the past election. If you have ever made a donation to the Liberal party, you are probably in this database.

Most political parties have databases like these, and they are commonly utilized during the vetting process for would-be party nomination candidates as a way of ensuring the candidate is indeed a tried and true partisan.

A PMO spokespers­on has said that it is “normal and appropriat­e” for the government to be prepared to answer questions pertaining to the “political activities and affiliatio­ns of government appointees.”

I agree that the government should be ready to answer questions about its appointee’s past. Case in point, our current Governor General, whose questionab­le past has been front and centre as of late.

However, the PMO’s explanatio­n doesn’t answer the question as to why past political participat­ion is part of the vetting process for judges, period. They are not political candidates. They are not applying to run under the Liberal party banner. The fact that an applicant for a judicial appointmen­t may have made a donation to the Green party 12 years ago, unsuccessf­ully ran for a Conservati­ve party nomination, or has given a penny to the Liberals shouldn’t be relevant factors in the vetting process.

This informatio­n has no bearing at all on whether or not a lawyer will make a good judge.

It makes you wonder; how many perfectly qualified applicants for the bench didn’t make the cut because there was an unsightly political blemish in their past? Or how many qualified lawyers who would have been amazing judges ended up in the reject pile because a junior staffer ran a “Liberalist” scan on them and it didn’t generate a good report?

The fact these questions can even be posed is the precise reason the CBA wrote its open letter.

All we need to do is look to the south of the border to see the problems that occur when partisansh­ip and judicial appointmen­ts are combined.

Attorney General David Lametti’s office has denied a problem in Canada.

“All judicial appointmen­ts are made on the basis of merit,” said press secretary Rachel Rappaport. “Partisan considerat­ions do not play a role in determinin­g the candidate that minister Lametti will put forward to cabinet.”

If partisan considerat­ions play no role, then the government should remove all political history searches as part of the vetting process, period. The fact that this informatio­n is compiled and reviewed by the government before appointmen­ts are made will always lead to speculatio­n about political interferen­ce and degrades the trust the public has in the justice system.

Adding a political hurdle has slowed down judicial appointmen­ts by limiting the pool of lawyers to choose from. Unlike political candidates, judicial candidates are not a dime a dozen.

Judges play a critically important role in society. They have a large amount of discretion­ary power, and by definition, are completely independen­t from the government. Judges are not permitted to be partisan. So why is partisansh­ip seemingly an appointmen­t criteria?

 ?? LUKE HENDRY / POSTMEDIA NEWS FILES ?? The federal Liberals are adding a political hurdle that has slowed down judicial appointmen­ts by limiting the pool of lawyers to choose from, Kathryn Marshall writes.
LUKE HENDRY / POSTMEDIA NEWS FILES The federal Liberals are adding a political hurdle that has slowed down judicial appointmen­ts by limiting the pool of lawyers to choose from, Kathryn Marshall writes.

Newspapers in English

Newspapers from Canada