JUDICIAL SYSTEM IS NO PLACE FOR POLITICS

Toews Has Promised Reform, But The Independence Must Not Be Lost

Justice Minister Vic Toews is being held in contempt by judges and
lawyers for jeopardizing the excellence and independence of our court system.

It's not the first time that judges have defended their independence
from the government, though when they have done it to argue for
higher salaries their motives might be a little suspect.

And it's not the first time lawyers, as represented by their bar
associations and law societies, have come to the defence of those on
the bench. They would -- wouldn't they? -- having to appear before
them as supplicants, and many of them aspiring, one day, to mount the
bench themselves.

This time, though, they have a pretty good case. The way judges are
appointed by our prime ministers, in consultation with ministers of
justice, lacks transparency, accountability and all those other
things which our democratic system is supposed to provide. It leaves
the ultimate choice up to the prime minister for whom all things have
political consequence.

The Commons justice committee was considering ways to reform the
system until the last election cut off its business. Toews, without
waiting for any advice MPs might tender, is barging ahead with his
own so-called reforms.

Since 1988 regional committees have vetted candidates for our higher
provincial and federal courts. They are made up of seven members --
four representing the attorney general, chief justice, law
association and bar association in the jurisdiction, and three chosen
by the federal justice minister, two of whom are not lawyers.

Apparently convinced, like many Canadians, that judges are too soft
these days, Toews proposes to add a police representative and take
away the vote of the sole judicial representative on the committees.
Apparently he expects judges to appreciate his offer of impartial
toothlessness.

Now most of the cops across the land merit our respect. They may
enforce some pretty irritating laws, but by and large they do so with
fairness and decency. Others, though, can run amok, and that's why
our police complaints commissioners are so busy.

Police are supposed to gather the evidence for judges to decide guilt
or innocence. They like to get convictions and, if given the power to
choose judges, naturally would pick candidates who are "tough on crime."

But giving cops a say in selecting superior court judges is "common
sense" to Toews, who makes a habit of including uniformed police as a
cheering section at news conferences to announce yet another item on
his law-and-order agenda.

It's already within his power to appoint two police representatives,
if he wishes, to the seven-person selection panels, yet he wants to
add an eighth member to give formal recognition to "the
law-enforcement community."

If being tough on crime is his objective, why not include
representatives of Mothers Against Drunk Driving or chambers of commerce?

On the other hand, it could be argued that those who visit our courts
as defendants should have a say -- not Hells Angels, perhaps, but
prisoners' rights groups or corrections officials. The aboriginal
community is badly over-represented in our court and prison
populations to our national shame.

To make matters worse, Toews proposes to lower the bar, so to speak,
by simplifying the way judicial candidates are rated by the
committees. Now they are graded "highly recommended," "recommended"
or "not recommended." Toews wants a simple "pass" or "fail"
designation: This would not recognize outstanding candidates, but
would increase the likelihood that appointments might be made on the
basis of other factors -- like politics.

Choosing judges for their politics is traditional in Canada. The way
so many politicians who retired or had been kicked out of office by
electors ended up on the Federal Court of Canada in its early days
should have been a national scandal.

In the '50s and '60s, 70 per cent of judges appointed in Quebec were
supporters of the party in office in Ottawa. The same was true for 85
per cent of appointees in B.C. and Alberta and 87 per cent of those in Ontario.

Twenty-five of the federal judges appointed between 1984 and 1988 by
the Mulroney government were defeated political candidates,
Conservative party officials or election campaign workers. Another 25
per cent were known Tory supporters.

Irwin Cotler, Toews' Liberal predecessor, kept that unsavoury
tradition alive by securing a place on the bench for his former chief
of staff. Toews himself was accused as justice minister in Manitoba
in 1998 of interfering in the selection of a provincial court judge.
The candidate selected had Conservative party ties, according to news
reports at that time.

The judicial selection process needs to be further removed from
politics, not further mired in it.

And it ill-behooves a minister of justice, who as attorney general
has a constitutional responsibility unlike any other minister, to
whine about the "radical agenda" of judges and to try to substitute his own.

Toews may not understand this, but there's more to justice than law
and order. Judges, even those who may be selected because of their
party, know this well.