Two retired Supreme Court judges are criticizing the federal government’s conduct after confidentiality breaches this week involving the appointment of judges to Canada’s top court.
Louis LeBel, a member of the court from 2000-14, said in an interview the breaches are “very serious,” because they could harm the process for appointing judges.
“From the outside, it raises some questions about how the matters were conducted in the PMO,” he said, referring to the Prime Minister’s Office.
John Major, who served on the court from 1992 to 2005, said, “the whole thing begins with just a general incompetence by the government.”
The highly confidential process for appointing judges burst into public view after leaks from within the government this week that suggested former justice minister Jody Wilson-Raybould and Prime Minister Justin Trudeau were at odds over judicial appointments. In an e-mailed response, Ms. Wilson-Raybould said there was no conflict between her and the Prime Minister on the matter.
The unprecedented disclosure came amid controversy over Ms. Wilson-Raybould’s testimony to a parliamentary committee that she was put under pressure to intervene when she was attorney-general in the prosecution of Quebec engineering company SNC-Lavalin Group Inc. The names of candidates, and the assessment of those candidates, are kept secret to protect the reputations of sitting judges and other applicants.
Some news outlets reported Ms. Wilson-Raybould backed Chief Justice Glenn Joyal of the Manitoba Court of Queen’s Bench to be the Supreme Court chief justice. The reports said her position caused Mr. Trudeau to doubt her judgment, as Chief Justice Joyal is seen by some as a conservative-minded judge, out of step with the government’s philosophy.
On the day the reports first appeared, Chief Justice Joyal took the unusual step of issuing a public statement, saying he had withdrawn from consideration for the Supreme Court for personal reasons related to his wife’s health.
Mr. LeBel said participants in the process have an expectation that their words will be kept private.
“The process of finding judges for all courts, especially for higher positions like the chief justiceship of a province or the Supreme Court of Canada, is a very delicate matter,” he said.
Individuals may, he said, be asked for deeply personal information about their health. Or lawyers may be asked for their views about a judge – and would not want the information being passed on to that judge. “You need that kind of frankness to be able to make good judicial appointments.”
The confidentiality breaches follow a political storm that began Feb. 7 when The Globe and Mail reported that Ms. Wilson-Raybould had come under pressure from senior officials in the Prime Minister’s Office to support a negotiated settlement in the criminal case against SNC-Lavalin, which faces bribery and fraud charges. She was moved from her cabinet post to Veterans Affairs in January and resigned from cabinet the next month. Since then, a second cabinet member, the Clerk of the Privy Council and the Prime Minister’s principal secretary have resigned.
Mr. LeBel said he did not know how the confidentiality breaches were linked to the conflict between Ms. Wilson-Raybould and the government. But “there appears to be some connection between them.”
Mr. Major said the Liberal cabinet “seems so inexperienced and innocent about the way a government should operate.” But neither he nor Mr. LeBel felt that the court or Chief Justice Wagner would be harmed by the breaches.
On Thursday, Mr. Trudeau condemned the leaks, but he declined to support calls for an investigation.
“This was not something my office had any part in leaking,” he told reporters. “This is something that degrades people’s confidence in the independence of our judicial system and they need to know that they can still very much have confidence in our system.”
The Conservative Party is making two proposals for an inquiry, after an earlier one was rebuffed on Wednesday by the Office of the Commissioner for Federal Judicial Affairs, which provides administrative support during the process.
Peter Kent, vice-chair of the Commons ethics committee, will on Friday ask the federal Privacy Commissioner to investigate what he describes as a breach of privacy law. And Lisa Raitt, the party’s justice critic, said she will ask the Canadian Judicial Council, a body of chief and associate chief justices chaired by Chief Justice Wagner, to look into the matter and make recommendations on how to avoid future breaches.
“This information would only have been known by a select few people close to Prime Minister Justin Trudeau,” she said in her letter to Chief Justice Wagner to be sent Friday.
Ms. Raitt said in an interview that the reputation of Chief Justice Joyal has been sullied by a false implication he does not support Charter rights.
“It’s unfathomable to me ... if there’s no punishment or investigation, it’s almost saying, ‘That was okay, move along.’ This one is so big it deserves to have the light shine on it,” she said.
Referring to a separate case now before an Ottawa court in which the military’s second-in-command, Vice-Admiral Mark Norman, was charged with breach of trust over alleged leaks related to a $700-million naval project, she said: “The RCMP were called in right away and two [Liberal] cabinet ministers gave statements indicating how grave an error this was. … This to me is far more serious and severe.”
NDP Leader Jagmeet Singh accused the Liberals of trying to erode the “public trust in Ms. Wilson-Raybould” by trying to change the channel from the SNC-Lavalin affair to a dispute over the appointment of judges to the Supreme Court of Canada.
“It is wrong to try to smear the former attorney-general when the issue here is political interference and where senior members of the Liberal government resigned because of this political interference, which essentially eroded the independence of the judicial system,” Mr. Singh told reporters.
“This speaks to a Liberal government that is going to all means to try to squash this story, this scandal.”
With a report from Robert Fife
Sean Fine