TOEWS SHOULD AT LEAST BE HONEST ABOUT HIS ATTACKS ON JUDICIAL INDEPENDENCE

While in opposition, the Conservatives never hid their disdain for an
independent judiciary, and now that they're in power, they're doing
their best to compromise judicial independence.

First, they instituted a show trial for new Supreme Court of Canada
justices, where the justices appear before a parliamentary committee
to answer questions. While appearing innocuous to some, the show
trials send the message that the Supreme Court answers to Parliament,
when in fact it is supposed to act as a check on parliamentary power.

Then the Conservatives proposed legislation to increase the number of
offences with mandatory minimum sentences, thereby fettering judges'
discretion to fashion appropriate sentences. That was followed by the
Conservatives' rejection of an independent commission's recommended
salary increase for judges, a move which further threatened judicial
independence.

Now the Conservatives have apparently decided to fiddle with the
composition and functioning of judicial advisory committees, which
vet candidates for federal judgeships. The 16 five-member committees
include members appointed by the judiciary, provincial bar
associations, the federal government, provincial governments and a
lay person, and rate candidates as highly recommended, recommended or
not recommended.

But according to a Winnipeg newspaper, Justice Minister Vic Toews
said he plans to add police representatives to the committees and to
remove the "highly recommended" category, thereby requiring the
committees to rate candidates on a pass or fail system.

Toews's decision to change by fiat the committees' composition and
functioning runs contrary to the long-established convention that the
justice minister first consult with the judiciary, the provincial law
societies and the Canadian Bar Association before implementing such changes.

Toews's action therefore prompted the Canadian Judicial Council,
which is composed of Supreme Court Chief Justice Beverley McLachlin
and all provincial chief justices and associate chief justices, to
take the unprecedented action of criticizing his plans.

"The council urges the government to maintain the status quo and
refrain from implementing changes in order to allow meaningful
consultation to take place," read the council's press release. "We
believe this is necessary to protect the interests of all Canadians
in an independent advisory process for judicial appointments."

Indeed it is, but Toews seems undeterred. His spokesperson, Mike
Storeshaw, said, "The minister has the discretion to make changes to
judicial advisory committees . . . there is no statute or law that
requires anything more than his discretion at this point."

Toews therefore appears comfortable with ignoring a long-standing and
useful convention -- and ignoring bar associations and the judiciary
- -- in order to advance his own ends, even if those ends work against
the interests of the Canadian people. And there is every reason to
believe they will. Toews denies this, of course, saying that "the
law-enforcement process is a very important aspect of the justice
system and to date, they have been under-represented in that process."

But why single out law enforcement personnel for special treatment?
If people who play an important role in the justice system is what he
wants, why not designate spaces for prison correctional officers --
or, for that matter, prisoners -- on the advisory committees?

Indeed, the committees may well benefit from broader representation,
but Toews's choice of police officers suggests that he's looking for
people who agree with his views -- police associations have, after
all, been among the strongest supporters of the Conservatives' so
called "law-and-order" agenda. This can only further compromise
judicial independence.

Further, Toews decision to eliminate the "highly recommended"
category also suggests that he wishes to arrogate to himself more
discretion in appointing judges. While previous governments sometimes
chose "recommended" candidates over "highly recommended" ones, their
questionable decisions were there for everyone to see. Toews
evidently would rather avoid such transparency. In contrast, a
responsible government truly interested in appointing the best
candidates would retain the three categories and only select judges
from those labelled highly recommended.

Toews's failure to consult with the relevant bodies is blatantly
obvious, and can only further erode the independence of the judiciary
and reduce the chances of appointing the best candidates. If this is
the result he wants, then he should say so. But if it isn't, he
should scrap his plans and consult with people who can offer him
sound advice before he implements any changes.