PICKING JUDGES IS NO DARK ART

Law Enforcement Officials Should Have Say In Selections

The procedure in the United States for appointing judges is public
and highly political.

Canada's processes are also political, but far less public, and the
legal profession has more sway in deciding who is appointed to the
bench than elected officials do.

Federal Justice Minister Vic Toews, a longtime critic of the system,
is now openly musing about changes which should open things up a
little. In particular, he proposes giving law enforcement officials a
seat at the table where lists are drawn up of those qualified to be judges.

On its own, it is hardly a solution to all he feels ails the system.
Still, a minority government is often obliged to move forward by
millimetres. It is the direction that matters, and the hostile
reaction of Canada's top judges merely suggests Toews is on the right track.

Judges wield a great deal of influence over Canadian daily life and
mores, especially since the introduction of the Canadian Charter of
Rights and Freedoms in 1982. It therefore matters a great deal to
Canadians who sits on the bench. Yet, the manner of a lawyer's
elevation to robed majesty is quite opaque to those he or she will
come to judge.

It must be emphasized that among the 1,100 or so judicial
appointments within the federal gift are individuals of the utmost
integrity and legal probity.

Still, there's plenty of evidence that it helps to be on the right
side of the party in power, or philosophically aligned with its
legislative agenda, at least.

The selection process Toews wants to modify is, in fact, the
consequence of a particularly blatant string of patronage
appointments made in 1984 by the outgoing Liberal government of Pierre Trudeau.

The Canadian Bar Association was outraged at the time and, in 1988,
Ottawa responded by establishing the current system of seven-member
Judicial Advisory Committees.

Made up of representatives of the legal community, along with federal
and provincial appointees, their job is to prepare shortlists of
people considered ready for the bench.

The committees communicate with the Commissioner for Federal Judicial
Affairs, a federal civil servant whose business it is to know who's
on the lists, and the direction of their judgments.

Then, when a vacancy crops up, the justice minister chooses from the
list the commissioner transmits to him.

It is an improvement on what it replaced. It remains, though, an
arrangement of informal and formal influence in which a surreptitious
word over lunch can determine a career, and ultimately the character
of the country, as much as any minuted proceedings.

Indeed, conservatives have complained just getting on the list is the
first challenge, in a system that shows a small-l liberal bias.
(Occasionally, a more partisan bias is revealed: Last year, a CanWest
News Services study showed nearly 60 per cent of those named to the
bench since 2000 had given money to the Liberal Party.)

Adding a policeman as an eighth member of these committees, as Toews
proposes, would give a law-enforcement perspective. Good. It does not
seem out of place in these discussions, given the degree to which
judicial punishment leaves law enforcement officials frustrated.

It will do little to make the process more open, however.

That makes the almost reflexive reaction from the Canadian Judicial
Council all the more surprising.

Its chairman, Chief Justice Beverley McLachlin expressed her dismay
at Toews' plan, and called for more consultation "to protect the
interests of all Canadians in an independent . . . process."

No doubt, judges favour the current system. Yet, this appeal for
independence appears to embrace exclusivity, as well -- not something
terribly valuable in choosing a judge.

As the committees are Ottawa's creatures, Toews can do as he pleases. He should.