Thursday, October 18, 2007

Abortion and Canadian Judicial Appointments

Cathie wonders if the abortion debate is unduly influencing the Harper Government's judicial appointments:

I guess women shouldn't worry about the anti-abortion right-wingers who are being appointed as judges by the Harper Conservatives -- like Lawrence O'Neil, who will be sworn in next week to the Nova Scotia Supreme Court, and David Brown, who was appointed last year to the Ontario Superior Court -- even though O'Neil said that a mother doesn't have the right to control her own body, and Brown was a lawyer for Focus on the Family and REAL Women of Canada.

This is a tough issue. Canada has neither the tradition nor a process for genuine, public vetting of judicial nominees.

And frankly, I am not sure we ever would want to get into the demeaning spectacle that is the typical American congressional hearing, replete with litmus tests and inappropriate questions that generally, are artfully dodged, anyways.

Our potential judicial appointees go through a very scrupulous consultation and evaluation process before they are appointed. This article extensively details the nomination system, and the thorough consultation by the Minister of Justice, "inside and outside the legal community," that precedes any judical appointment.

This process, however thorough it may be, is not a public one.

The Harper government did introduce more transparency with a new process, utilized in the February 2006 committee hearing at which Supreme Court then-nominee Marshall Rothstein appeared:

Canadian history was made Monday as Supreme Court nominee Marshall Rothstein appeared before an ad hoc committee of parliamentarians, televised on four news channels.

It had never been done before, and represents a promise kept by Stephen Harper, who has mused for years about a more open, publicly accountable selection process.
Critics, including the Canadian Bar Association, have expressed fears of partisan, American-style media circuses. Still others have sniffed the "hidden agenda" -- that some conservatives are convinced that the high court is hopelessly liberal and activist, in effect making laws such as same-sex marriage, rather than interpreting existing statutes.

It was different, that's for sure.

Usually, justice ministers are answering questions from MPs over court selections.
Monday, it was newly minted Vic Toews who chaired the hearing -- ad hoc and not subject to parliamentary privilege because the new House isn't sitting yet. The inclusion of a non-parliamentarian, ex-Osgoode Hall law school dean Peter Hogg, was also unprecedented. A champion of this sort of change, Hogg set down the rules in his opening remarks.

The tone was to be civil and respectful, with a prohibition against personal inquisitions or fishing expeditions on how the prospective judge might rule on the contentious issues of the day.

Of course, that's exactly what most of us shallow Canadians would really want to know. But Hogg went to the point of counselling Rothstein that he shouldn't answer any question he found objectionable, and shouldn't feel badly about it.

Amid three hours of general questions, many of them rambling, a couple of pointed queries did pop up, mostly from Conservatives.

Calgary MP Diane Ablonczy wondered about Rothstein's views on the notwithstanding clause and activist courts. Ontario Tory Daryl Kramp seemed to be trolling for a declaration that the courts need to get tougher on violent criminals with mandatory sentencing.

In each case, Rothstein gently demurred, responding with some generalities of his own, recognizing public concern without tipping his hand.

There has been no suggestion I am aware of that this type of process should be used for lower court nominees. So essentially, there's no means of publicly assessing, in advance, what we are getting with an appointment.

Still, I am not concerned.

Most lawyers who appear in Canadian courts will tell you that, with few exceptions, the quality of our judiciary is extremely high. The question of a judge's views on abortion and any other wedge issues is not my highest concern, in view of that high quality.

I simply don't see judges in our current system allowing their personal beliefs, whatever they may be on these matters, to affect case outcomes.

Judges hear evidence and apply the law. Our courts, in spite of what the media may suggest, are simply not that political, by and large.

In regard to our judicial cultures, Canada and America are simply different.

- Garry J. Wise, Toronto

Visit our Toronto Law Firm website: www.wiselaw.net

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