Legal observers worry future judicial appointments will be done in secret

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Prime Minister Stephen Harper's power to reshape the Supreme Court in secret is raising alarm in Canada's legal community after the release of documents showing the government has no plans to involve Parliament in appointing the judges.

Citing a report in The Globe and Mail that revealed the Prime Minister's confidential list of candidates for a court vacancy, Justice Minister Peter MacKay said the government chose not to use a panel of government and opposition MPs in winnowing down candidates to a list of three, or to hold a public hearing in Parliament, when it appointed Justice Clément Gascon to the court in June.

He added that after the leaks that led to the Globe story, the government no longer trusted the old system, but did not have time to introduce a new one for that appointment.

Another vacancy opens up on Dec. 1 with the retirement of Justice Louis LeBel, and the government has not decided whether to include Parliamentarians in that appointment, the documents show.

"To take away opportunities for consultation – after what we have lived through – only guarantees we're going to end up with the same difficulties and public doubt," said Montreal lawyer Simon Potter, who served as president of the Canadian Bar Association. He added that he worries consultation with the legal community is being shut down, or reduced, too.

It is the latest controversy involving Supreme Court appointments in a year strewn with them. First, Mr. Harper appointed a semi-retired maritime law specialist, Justice Marc Nadon, not widely perceived to be deserving; then, the Supreme Court ruled Justice Nadon ineligible; then, the Prime Minister accused Chief Justice Beverley McLachlin of trying to talk to him about that legal case ahead of time, creating an unprecedented public skirmish.

Legal observers said shutting down the process would take the country back to a time before 2004, when the appointment process was shielded from public view.

"I don't think that would be acceptable if it would be completely behind doors," said Michele Hollins, the current president of the 37,000-member CBA.

A spokesperson for Mr. MacKay said the appointments have "always been a matter for the executive and continue to be," that the government consults widely with the legal community on the matter, and that the breach of confidentiality that led to The Globe's story is still a concern. "As we are concerned about recent leaks from what was intended to be a confidential process, we are reviewing the process for future appointments," the spokesperson, Clarissa Lamb, said in an e-mail.

For the past 10 years, appointments of Supreme Court judges have been screened by a selection panel that was created by a Liberal government and tweaked by the Conservatives to make it entirely composed of Members of Parliament. After an appointment, a public hearing in Parliament is held. Mr. Harper was the first prime minister to include the newly appointed Supreme Court judge in the hearing.

The appointments are made by cabinet, but in practice are the Prime Minister's prerogative. Judges can sit until they are 75, so Mr. Harper's legacy on the court may last a long time. Chief Justice McLachlin, for instance, was appointed to the court (not as chief justice) by Brian Mulroney in 1989. And the court wields enormous power under the constitution, the country's supreme law. In the past year, it has struck down or softened the impact of some of Mr. Harper's tough crime laws.

Some in the legal community worry that a lack of transparency would give the PM untrammelled power over Supreme Court appointments.

"It's another situation where power is concentrated in the Prime Minister's Office," said Jean Leclair, who teaches law at the University of Montreal.

Françoise Boivin, the New Democratic Party's justice critic, who was a member of the Supreme Court selection panel that screened Justice Nadon, said the government is using the leak as an excuse to shut the process down.

"They were not happy when they saw the names in the story. Now they're trying to make this the scapegoat of the whole story, which I find a bit cheap. It's an easy way out."