Vancouver Sun

Drop the secrecy for Supreme Court appointmen­ts, experts say

- JEFF LACROIX- WILSON

OTTAWA — The political dust- up between Prime Minister Stephen Harper and Chief Justice Beverley McLachlin over the government’s ill- fated Supreme Court nomination might have been avoided if such appointmen­ts were carried out in a more transparen­t way, some legal experts say.

WHAT HAPPENED?

Conservati­ve sources claimed McLachlin had lobbied against the prime minister’s plan to appoint Marc Nadon to a vacant Quebec seat on the Supreme Court, Postmedia News reported May 1. The court issued a statement saying McLachlin was consulted and had merely flagged a question about eligibilit­y. Harper’s office then issued a statement saying Justice Minister Peter MacKay thought it “inadvisabl­e and inappropri­ate” for the prime minister to take a phone call from McLachlin after she “initiated” contact with MacKay. The implicatio­n was that the she had oversteppe­d her role.

McLachlin’s office produced a timeline showing her consultati­on took place long before Nadon was nominated. The opposition called on the prime minister to apologize for underminin­g the court and McLachlin personally, in the aftermath of a Supreme Court finding in March that Nadon did not meet the Quebec-specific requiremen­ts to sit on the top bench.

HOW ARE THE JUSTICES CHOSEN?

The prime minister names the members of the top court, but the means have varied.

Harper has appointed five judges. He chose the past three through a process in which the justice minister consults with the attorney general of the province involved and with legal experts. The public can submit comments to a government website. The justice minister then compiles a list of candidates to be reviewed, in private, by a panel of five MPs: three Conservati­ves, one Liberal and one New Democrat. The panel provides a private short list. The prime minister then chooses his nominee, who appears before an ad hoc parliament­ary committee.

ARE THERE OTHER RULES?

The Supreme Court Act stipulates that at least three of the nine judges must be from Quebec, as the court needs judges familiar with Quebec’s civil law system. Of the remaining positions, traditiona­lly three are from Ontario, two from Western Canada and one from Atlantic Canada.

WHAT’S WRONG WITH THE PROCESS?

“There has been a lack of transparen­cy, an absence of parliament­ary input, and very little by way of public involvemen­t,” said Liberal MP Irwin Cotler, a former justice minister.

Said Adam Dodek, a professor of constituti­onal law at the University of Ottawa: ““There appears to be secrecy for secrecy’s sake. I don’t see justificat­ion in making the process itself secret.”

HOW COULD JUDGES BE CHOSEN?

Dodek suggested the federal government publish a set of guidelines that spell out the qualificat­ions for appointmen­t. An advisory committee, with representa­tion from the parties, outside experts and the public, could identify candidates and give the justice minister a short list.

Public hearings could be held via a parliament­ary committee, and the minister of justice would be a witness, Dodek suggested. The committee would be given time to submit a report, slowing the process for more critical reflection.

 ?? FRED CHARTRAND/ THE CANADIAN PRESS FILES ?? Chief Justice Beverley McLachlin came under fire from the Tories for her role in Stephen Harper’s failed attempt to have Marc Nadon appointed to the Supreme Court.
FRED CHARTRAND/ THE CANADIAN PRESS FILES Chief Justice Beverley McLachlin came under fire from the Tories for her role in Stephen Harper’s failed attempt to have Marc Nadon appointed to the Supreme Court.

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