When Prime Minister Stephen Harper made appointments to the Senate recently, critics decried them as examples of more government patronage.
In fact, there have been several cases in recent months that have raised the notion of appointments of political allies, including those who were campaign workers or volunteers or who ran for office for the governing party or its provincial cousins only to lose and shortly thereafter find themselves receiving jobs as a Superior Court judge.
Justice Clayton Conlan in Owen Sound, Ont., joined the Superior Court bench last month after serving as campaign manager for the successful Tory candidate in October’s provincial election.
Justice Bruce Fitzpatrick ran for the Ontario Progressive Conservatives in the 2007 provincial election in Peterborough, Ont., before his appointment as a Superior Court judge in Thunder Bay, Ont., last year.
Superior Court Justice Brian Abrams in Kingston, Ont., had previously been a federal Conservative candidate.
Do these appointments reflect bad optics because of the timing or are the new judges the right people for the job regardless of their political ties?
Asked about the issue, two well-known legal commentators had differing points of view. Philip Slayton is categorically against those types of appointments. “This is easy,” says Slayton, a lawyer and author.
“The optics are extremely bad because you take someone who very shortly before was clearly partisan and clearly speaking on behalf of the government that formed the government and you put them in a position where they have to be completely non-partisan and unbiased.
“So the optics are terrible. Because the optics are so bad, in my opinion, the ethics are also bad. It’s a bad thing to do.”
In Slayton’s view, politically connected lawyers should have to wait up to five years before receiving appointments.
Abrams joined the family division of Ontario’s Superior Court of Justice last February. The appointment came less than two months after he resigned as a federal Conservative candidate in Kingston.
“It has been my distinct privilege to have been nominated twice as our federal candidate,” Abrams said in a news release at the time, citing family and work pressures as reasons for stepping down as a candidate.
The Liberals slammed the appointment as an example of clear partisanship. “I think Canadians will find it disturbing that someone can be a Conservative candidate in December and sitting on the bench in February,” said Liberal MP Geoff Regan in an interview with The Canadian Press at the time. '
“This raises serious questions about the government’s integrity and how far it’s willing to go to bend the rules.”
The federal Liberals, who faced accusations of patronage themselves during their time in office, also charged that the Harper government had appointed 39 judges with ties to the government since the 2008
Three other people with Tory ties, in fact, received appointments at the same time as Abrams: Lawrence O’Neil, a Conservative MP from 1984-88, who became the associate chief justice of the family division of the Supreme Court of Nova Scotia, as well as Manitoba Court of Queen’s Bench Associate Chief Justice William Burnett and Superior Court Justice Christopher Bondy in Windsor, Ont.
Both Burnett and Bondy had previously donated to the Conservatives, media reported.
But James Morton, a Toronto lawyer, author, and member of the Liberal party, says that while he agrees that the optics of such appointments can be poor, eliminating everyone who has political ties could significantly shrink the pool of qualified candidates.
“I really don’t see anything wrong with that,” he says. “Clearly, if you have a situation where you are buying a judgeship by making a donation and you get an appointment, that would be highly inappropriate and deeply offensive.
But to say that someone who is deeply involved in the political system is therefore barred from becoming a judge I think would really limit the number of excellent appointments you can have.
“Having said that, people who have run, people who have contributed, people who have been involved in various political parties have been appointed to the bench and some have raised concerns over it.”
Still, Morton believes there should be a waiting period of at least two years before an appointment. “It’s important that people feel confident in their judges and recognize they’ve not been appointed just as a political favour,” he says.
But Morton doesn’t think it’s correct to say that governments appoint judges because of their political affiliations.
“I think sometimes their politics is just another facet of their community involvement and it helps them to get appointed that way. Having said that, there are political considerations that go into appointments and that I see as unfortunate.
I think that the political involvement should be seen as a plus whether it be political involvement with the Conservatives, NDP, Liberals or the Green Party. I don’t think it should be held against you that you ran for one party or another.”
Morton recalls a conversation he had with a former attorney general of a province he won’t name. He notes the person provided a pretty clear view of what happens.
“He said to me, ‘Look, when we’re appointing judges, we don’t really want to appoint people who are partisan but we do want to appoint people who are consistent with our view of the justice system,’ and I think that makes sense,” says Morton.
One critic has decided to keep note of not just judicial appointments but also people named to the Parole Board of Canada, the Canada Pension Plan review tribunal, the Royal Canadian Mint, and other government bodies on the web site sixthestate.net.
The site includes a patronage list detailing 721 appointments by the Conservative government since Harper became prime minister in 2006.
“Stephen Harper once denounced this system as the prime minister rewarding his ‘buddies,’ but while in office has been uninterested in changing the system.
Instead, he has continued to appoint party insiders and supporters at a frenzied pace, even to the Senate, which he once demanded be fully democratized through elected senators with term limits,” the web site charges.