Judicial appointment process raises alarm

OTTAWA – The lack of transparency in federal judicial appointments has come under fire after the Harper government filled a series of bench vacancies across the country recently.

The newly elected head of the Canadian Bar Association and other lawyers are calling for a major overhaul, including a requirement that the prime minister or cabinet ministers recuse themselves from appointment decisions if they were involved in civil suits where judicial applicants have presided.

The latest round of debate on the topic stems in part from what even critics of the system are calling an impeccable choice for the Ontario Superior Court of Justice.

Earlier this month, Justice Minister Rob Nicholson announced the elevation of Robert Beaudoin, a case management master in the eastern division of the Superior Court, to its trial division.

But NDP MP Joe Comartin, a lawyer and his party’s justice critic, says Prime Minister Stephen Harper should have excused himself from the cabinet decision confirming Nicholson’s recommendation to put Beaudoin on the bench.

Beaudoin, with a stellar career in court administration and as a master in addition to his work abroad on the reform of justice systems in other countries, coincidentally presided in a motion in a libel suit a former Conservative member launched against Harper and his party.

In 2007, Beaudoin ruled on a motion from Harper’s lawyer to confirm that parliamentary privilege prevented the plaintiff, Ottawa lawyer Alan Riddell, from compelling the prime minister to testify or even appear for cross-examination while Parliament was in session.

Lawyers who know Beaudoin from his long career and also his work in the reform of Ontario’s civil justice system say there is no question about his qualifications for the bench or any chance at all of a conflict while serving as a judge.

But the appointment added a new wrinkle to the debate over recent changes by the Conservative government to the process of judicial appointments.
What if a prime minister or cabinet minister has been involved in a civil suit where a trial judge applying for promotion to an appeal division has presided?

The same question could apply for case management masters, who often rule on motions within civil suits, when they seek promotion to the bench.

New CBA president Kevin Carroll says that in the case of trial judges applying for elevation to appeal divisions, a minister or prime minister who has been subject to litigation in front of the judge should stay at a distance from the appointment.

Beaudoin’s ruling in the Riddell v. Conservative Party of Canada lawsuit was based in part on recent precedents in which the same form of parliamentary privilege prevented civil plaintiffs from compelling former finance minister Paul Martin and former deputy prime minister John Manley to testify in lawsuits against their departments.

Carroll noted that elevations to appeal divisions are the responsibility of the prime minister on recommendations from the justice minister, and consultations between the two officials in those cases are routine.

“I would expect, though, that if there is such a close relationship between the applicant and a particular cabinet minister, that cabinet minister should excuse himself or herself from the process so as to avoid any taint or bias,” Carroll tells Law Times.

He says CBA opposition to the Harper government’s amendments to judicial appointment advisory committees stands, notably the insertion of a nominee from the police community and the designation of the provincial bench nominee as a non-voting chair of the committee.

The CBA also wants a “cooling-off period” for former MPs or provincial MLAs who apply for judicial positions to prevent them from appointment for two years after they leave office.

The advisory committees are composed of one nominee of the provincial chief justice, one member nominated by the province’s law society, one nominated by the CBA, one by the province’s attorney general, one by the “law enforcement community,” and three nominated by the federal justice minister.

Ottawa lawyer Ian Stauffer, president of the County of Carleton Law Association, adds his voice to those who say the prime minister or cabinet ministers should excuse themselves from the appointment of judges who may have had a role in civil suits that involved them.

“I would certainly agree with that,” Stauffer tells Law Times. “It’s just the apparent conflict of interest, obviously. That minister might feel negatively toward that trial judge or that master.”

Nicholson’s office declined to say whether Harper recused himself from the cabinet decision on Beaudoin’s appointment or whether the justice minister was aware of the new judge’s decision in the libel case.

A spokesman for Harper also declined to respond to the question, describing it as “silliness” and saying Beaudoin is a “highly respected jurist whose integrity is above reproach.”

Spokesman Dimitri Soudas noted Justice Charles Hackland of the eastern division was promoted to regional senior judge by the Harper government after he made an “unfavourable ruling” towards the prime minister in the Riddell case.

In that instance, Hackland awarded Riddell costs for a motion that he won over the cross-examination of Harper’s chief of staff but reduced the amount from the roughly $7,000 Riddell had requested to just over $2,000.

Coincidentally, Hackland became the case management judge in another libel suit involving Harper after he was elevated to the senior position.

In that lawsuit, which Harper launched against the Liberal Party of Canada, Hackland adjourned the proceedings at the request of the prime minister’s counsel shortly before a hearing that was to take place during the 2008 federal election.

Lawyer Richard Dearden told Hackland he couldn’t reach Harper for adequate instructions because he was occupied with the campaign.
Harper later dropped the lawsuit after Stéphane Dion stepped down as Liberal leader.

For lawyers, while the legal issues at hand in those rulings may be minor, the appearances become a concern when senior politicians make judicial appointments involving the same people who presided over them.

“I don’t think there is any question the person should recuse themselves from that situation because there is an apparent conflict of interest,” says Stauffer.

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