JUDGES LASH OUT AT PM'S COMMENTS

Say Independence Of Judiciary 'In Peril'

Chief Justice Beverley McLachlin and a contingent of other senior
judges took a swipe yesterday at the Conservative government by
asserting that the independence of the judiciary is "in peril" and
that it must be free to make rulings "irrespective of political or
ideological considerations."

The rebuke from the Canadian Judicial Council has once again thrust
judges into a public battle with the government. It was delivered amid
a fierce debate fuelled last week by Prime Minister Stephen Harper's
blunt acknowledgment that he wants judges who are tough on crime.

"The judiciary has an important duty toward every person who comes
before the courts: to impartially hear and resolve disputes, to
interpret the laws of the country and to uphold the Constitution," the
council said in an "information document," which does not directly
mention the prime minister.

"The primary qualifications to serve the public in that role include
sound judgment, extensive knowledge of the law as well as the ability
to maintain an open mind and put aside preconceived ideas about all
issues that come before the court."

The council also denounced the Harper government for tampering with
the system of appointing federal judges so that the appearance of
judicial independence is in jeopardy.

The government, breaking a tradition of consulting with the judiciary,
recently changed the makeup of judicial advisory committees that exist
in each province to screen candidates for the 1,100-member federal
bench.

The government now holds the balance of power in that the minister of
justice's appointees to the panels have the majority of votes.

"This puts in peril the concept of an independent body that advises
the government on who is best qualified to be a judge," said the council.

Until recently, the screening committees -- set up in 1988 to bring an
element of independence to a process that critics said was awash in
patronage -- set up panels that included a judge, two lawyers, a
representative of the attorney general in the province in question and
a minister's appointee. The minister's appointees were increased to
three in 1994.

The Conservative government recently added one more, a member of the
police force, to each committee, giving the minister of justice's
representatives the bulk of power in the event of a tie, because the
judge on each committee does not vote.

The council hinted in its statement that judges may pull out of the
committees if they feel that the process is becoming too political.

"The Canadian Judicial Council accepts, despite these changes to the
advisory committees, that judges can continue to participate in the
deliberations ... but only if the principle of judicial independence
is respected and judicial candidates are recommended strictly on the
basis of merit."

It is rare for judges to dive into a public spat with the
government.

Norman Sabourin, the council's executive director, said senior judges
felt they had to add their voice.

"Certainly, given the commentary by a lot of people and public debate
on the issue, I think it is important to speak out that the only
criterion that should apply is highest merit, not one's ideological
conviction," he said in an interview.

The council also took issue with the government decision to change the
way it makes recommendations to the minister of justice, who has the
final say in selecting federal judges who sit on superior and appeal
courts in each province, as well as the Federal Court, the Federal
Court of Appeal, and the Tax Court of Canada.

Committees, who used to decide whether candidates were recommended,
not recommended, or highly recommended, now only give them a pass or
fail and the "highly recommended" has been eliminated.