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A constitutional expert claims that the proposal by Justice Minister Vic Toews (photo at right) to change the composition of judicial appointments advisory committees could be struck down by—who else?—judges.
The changes, announced last week by Justice Minister Vic Toews to the great consternation of the legal community, appear to violate an "unwritten principle" of judicial independence which has been invoked in the past by the Supreme Court of Canada, said University of Ottawa law professor Errol Mendes."One could argue quite convincingly that the unwritten principle requires an arm's-length appointment system to preserve the independence of the judiciary," said Prof. Mendes, who recently completed a two-year stint as a senior adviser in the federal Privy Council Office.
Mr. Toews intends to increase the membership of each committee from seven to eight by adding a police representative, who would be appointed by the federal government. He also intends to make the sole judicial representative on each committee a non-voting chair.
Detractors claim that by giving the federal appointees a majority on the reconfigured committees, Mr. Toews's plan could allow the government to block any judicial candidate it does not favour, opening the door to the government packing courts with political cronies or candidates who share its ideology.
I agree that judicial independence is an important principle, but the question is whether the proposed changes violate it. After all, we’re only talking about advisory committees; they don’t actually make judicial appointments.
Canadian Supreme Court justices are appointed at the sole discretion of the Prime Minister and Cabinet, and no Supreme Count justice or other Canadian judge has ever brought a legal action to overturn that procedure as a purported violation of judicial independence.
Supreme Court judges have to endure a process of direct appointment by the Executive Branch. How dependent can you get!
Anyway, as I said, those suddenly controversial committees are only advisory; the actual appointments are made at the discretion of the federal Minister of Justice—that would be the reviled despicable loathsome ignorant misguided Vic Toews.
Unfortunately for the Canadian judiciary, there’s no getting away from the justice minister chosen from among the people’s elected representatives. But it sure sounds like Canada’s lawyers and judges would like nothing better than to bypass that bothersome House of Commons completely. Maybe they think "arm’s-length" means "a law unto themselves"?
Previous related posts:
[...] No issue typifies the Liberals’ anachronistic approach to Canadian politics more than the gun registry—no longer just a colossal boondoggle but a now proven failure to boot. Western Canadians have by and large opposed the registry from day one, but it is still not on the Liberals’ agenda. How many more billions must the government throw away before they realise another approach to fighting gun crime must be found? Like, maybe, appointing judges who will enforce the laws we already have. [...]
[...] Lawyers “shocked”, “hurt” by judge’s criticisms By StatGuy Less than a month ago, judges and lawyers joined in denouncing federal justice minister Vic Toews. Now, however, they’ve turned on each other. [...]
[...] Fortunately, the Conservative government didn’t back down in the face of denunciations and thinly veiled threats. The first police officials to sit on judicial advisory committees have been named. The officials range from a Vancouver detective who worked on the Pickton case to a Toronto police-union boss who called for a tougher law-enforcement approach to gun violence. [...]