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Are judges appointed for political ties?

|Written By Kenneth Jackson

When Prime Minister Stephen Harper made appointments to the Senate recently, critics decried them as examples of more government patronage.

James Morton believes there should be a waiting period of at least two years before an appointment. Photo: Sandra Strangemore

But what about appointments to the Ontario Superior Court bench?

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

election.

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.

  • abrams

    janice m
    just had an appearance with Abrams in family court..my ex is a policeman, the first thing the judge mentions is that he was a 38 year veteran of the police...right then and there I knew I done...criticized everything I had from then on...im self represented but my ex is not.
  • John H. E. Middlebro
    Justice Conlon weas the best choice of all the candidates, and, he is emminately qualified, coming from a traditionally Liberal firm.
  • Charles
    No matter what government, the rule still applies. You have to pay your dues to the reigning political party to get an appointment. Unfortunately, being deserving from the government aspect does not mean fully qualified or being the best candidate to sit on the bench. In the current patronage situation, I stopped wondering at the rational of some of the decisions from the bench. I find it sad to have to explain some of them to clients and non-legal friends.
  • robert
    query? what is the ratio of men to women? i get the impression that the conservatives are only appointing white males
  • CynicalByNature
    At the grass roots level, throughout most of the province, it is well known that without Conservative "ties", there is not much point in applying for the Ontario Superior Court appointment at the present time. It may have been the same situation for the Liberals before the Harper Conservatives -- and it's not to say that there have not been some good appointments. But many local Bars are aware of some atrocious appointments, and it is still a shame that merit is not the primary qualifer for the Bench.
  • Donald Gtrant
    The question is not what their politics is or was, it is were they recommended by the Federal Judicial Appointment Committe for appointment and if they were not they did not have the qualifications to be appointed and therefore should not have been appointed.
  • Rob Harvie
    The massive shift by our Supreme Court of Canada relative to issues of criminal and family law have clearly been strongly influenced by the selection of Judges who shared ideologies with our formerly tenured Liberal governments,as with our Superior Courts generally.

    Such is the way of things - which doesn't make it right, but the politicization of our judiciary, not only by the selection process, but more importantly, perhaps, by public and not-so-subtle political pressure after appointment is a fairly serious problem that we've been content to ignore.

    If we fail to secure a judiciary who is widely respected as unbiased, we run the risk of the public losing faith in the process - which isn't the same as assuring that Judges make decisions that the public "likes".

    The addage "hard facts make bad law" has perhaps been forgotten in this age of bending the law to suit ideological principals..
  • Rose Perri
    Well, courts approach is just another form of power politics; the judiciary's critics argue: there is nothing in it for the common man.

    Totally ineffective and corrupt system,


    Rose Perri, Homeless Memorial Caretaker,
    Street activist, Holy Trinity Church, Trinity square, TO near Eaton Centre
  • Michael L
    "When in Rome"
  • Al Barnett
    Why does this only become an issue when a conservative government appoints people. The Liberals did this for 40 years without a whimper from anybody.
  • John G
    This is absurd. There were lots of complaints about patronage appoinments of judges (and others) under the Liberals too. As the article notes, it's one thing to appoint people who are sympathetic to your principles, even if they have demonstrated that by helping you get elected. It is another thing (though the line may be fine) to appoint people as a reward for their help.

    It is an old saying that in the US, you have to get elected to be a judge (at least in many state courts); here you have to be defeated.
  • Jeff Christian
    Patronage appointments, like other things under Harper, seem to have been taken to the max. It's as though "we finally have a chance to appoint OUR friends, and we have to do it as much as possible to get the RIGHT people in the right places."

    It is a pathetic and corrupt system.
  • Gladiator
    How to find judges who can use Charter to drop drug charges against police officers or go to any length to please their bread providers? Its liberals or conservatives not Canada or Canadians indeed.
  • Rob
    The past should not control the future of our children.
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