The federal government says it abandoned its normal process when it named Justice Clément Gascon to the Supreme Court in June because it was worried about leaks to The Globe and Mail detailing the flawed selection process used to choose the last candidate.
In May, The Globe published the government's secret list of six candidates for the vacancy, which was filled last September by Justice Marc Nadon of the Federal Court of Appeal. The Supreme Court later ruled that appointment illegal, saying that Federal Court judges do not have the required qualifications for one of the three spots on the court reserved for Quebec.
Written responses to questions from Liberal MP Irwin Cotler, signed by Justice Minister Peter MacKay, provide new insight into the decisions of a government already on the defensive after the failed appointment and the revelations of what lay behind it. His responses were filed in the House of Commons and made public on Tuesday.
In selecting Justice Gascon, the government chose not to use a panel made up of government MPs and opposition members in winnowing down candidates to a short list of three, or to hold a public hearing in Parliament at which the judge could be questioned. The hearings featuring a new Supreme Court appointee were brought in by the Harper government.
Mr. MacKay's written responses confirm that The Globe's story was the reason the government did not use a selection panel or hold a public hearing. He also indicated that the decision not to convene the public hearing was made by the Prime Minister's Office.
"An article by Sean Fine of the Globe [and] Mail dated May 23, 2014 purported to provide various details about the selection process including the names of candidates considered," Mr. MacKay's response says. It adds that the government has chosen not to confirm or deny the allegations in the article "to protect the integrity and confidentiality of the selection process as well as the names of the candidates."
Asked about the impact of the leak on the appointment process, Mr. MacKay response says, "As a result of this, the government chose not to constitute a Selection Panel, nor to arrange for an ad hoc parliamentary committee for the appointment of [Justice] Clément Gascon to the Supreme Court of Canada."
Four of the six names on the secret list obtained by The Globe were members of the Federal Court or Federal Court of Appeal. They included a judge who had on at least two occasions copied large portions of rulings from government documents, and been publicly criticized for it by appeal-court judges. None of the four, as it turned out, were eligible for the Supreme Court.
The contents of that list shed light on Prime Minister Stephen Harper's public criticism of Supreme Court Chief Justice Beverley McLachlin earlier in the spring. He and Mr. MacKay had asserted that the Chief Justice tried to contact Mr. Harper inappropriately about the case involving Justice Nadon's eligibility. In fact, as part of the government's consultations, Justice McLachlin had been shown the list two months before Justice Nadon was appointed, and had tried to flag a potential legal issue involving the four Federal Court judges. Mr. Harper later came under international criticism for his assertions.
The Supreme Court will have another vacancy on Dec. 1 when Justice Louis LeBel retires, and the government acknowledged it has no process in place involving parliamentarians to choose his replacement. Mr. MacKay's response indicates that the process has not been abolished, but is "under reconsideration."
"It seems to me the government doesn't want a process at all," Mr. Cotler said in an interview. He said the "putative leaks" to The Globe were "certainly not grounds for suspending a judicial appointment process."
Noting the government's acknowledgment that the Prime Minister's Office, not the Justice Minister, had made the decision not to convene a selection panel of parliamentarians last spring, Mr. Cotler said the decision is being driven by politics, rather than the need for openness, inclusion and accountability in the selection of Supreme Court judges.