Justin Trudeau’s government is appointing judges using a very Liberal interpretation of the merit system.
From the outside, the selection process has many of the features of a merit system: open applications, advisory committees to come up with a short list and appointment by the justice minster.
But on the inside, there are Liberal steps to the bench. There is a peek through the candidate’s past political donations; local Liberal MPs get to have a say; the former justice minister even held a pizza party to involve Liberal backbenchers; the regional Liberal minister’s input was essential; in Manitoba, even the then-regional minister’s wife, a sitting judge, had extensive input.
That’s what comes through in an extensive series of e-mails about the vetting system for federally appointed judges obtained by The Globe and Mail’s Daniel Leblanc.
Last year, Prime Minister Trudeau, defending the judicial appointments of friends of New Brunswick cabinet minister Dominic LeBlanc, said there was no need for concern.
“We have a merit-based, transparent appointment system,” Mr. Trudeau said then.
But that is not so.
Trust in an independent judiciary is important. Putting partisan layers into the selection process undermines that trust.
That is not made more acceptable by the fact that both Liberals and Conservatives inserted partisanship into the process. The Liberals howled when Stephen Harper’s Conservative government packed the judicial advisory committees, the bodies that make short lists, with partisans.
The difference between Conservative patronage and Liberal patronage is that the Conservatives believe they have a right to insert a partisan tilt into the system to provide a counterweight to all the Liberals, and the Liberals believe that when they do it they are acting for the greater good of all Canadians.
Governments of all political stripes have a legitimate reason to look for opinions. Judges wield power, and are essentially appointed for the rest of their working lives, so you want to make sure they won’t be a disaster.
When seeking opinions means a lot of canvassing of the Liberal network, you have a partisan process.
The Prime Minister’s spokeswoman, Chantal Gagnon, had this to say about the glimpse inside the system provided by the e-mails: “It would be irresponsible not to consult a wide range of people including elected members of Parliament when considering such an important lifelong appointment.”
The flaw in the logic is that the government doesn’t consult “elected members of Parliament.” It consults Liberal members of Parliament. Presumably, it’s just as irresponsible to fail to consult opposition MPs. Unless partisanship is at play.
The e-mails show that consulting Liberal MPs for views on candidates became a key step.
For example, when Michael Kraus, a justice on the Alberta Court of Queen’s Bench, was considered in 2018, a PMO staffer noted in an e-mail to an aide to then-justice minister Jody Wilson-Raybould that he was missing “specific feedback” from the two Liberal MPs in Edmonton at the time, Amarjeet Sohi and Randy Boissonnault.
Ms. Wilson-Raybould, apparently feeling under pressure from the PMO to consult Liberal MPs, even held a pizza party where she encouraged MPs to submit the names of candidates for the bench or for the judicial advisory committees. Bringing backbench MPs into the loop is usually good, but not for vetting judges.
One e-mail from Jessica Prince, then chief of staff to Ms. Wilson-Raybould, recounted a call from “Liberal-connected lawyer” Mitch Frazer, who wanted to point out that although the Ontario Superior Court of Justice’s Julie Thorburn was appointed by Mr. Harper’s Conservatives, she was actually a Liberal. She was promoted to the Court of Appeal in June. Justice Thorburn had enough merit to be appointed by two governments, but identifying her party tie still apparently mattered.
A strange side note: Jim Carr, then the regional minister for Manitoba, was consulted on candidates for the bench in the province, but so was his wife, Colleen Suche, a sitting judge, who suggested a candidate not be appointed associate chief justice of the Court of Queen’s Bench on which she sits.
“People are consulted because they have a knowledge of the bar and court, and the Minister of Justice makes his decisions," Mr. Carr told reporters on Wednesday.
But it is not just “people” being consulted, is it? An awful lot of them are Liberal people. That makes a merit system that will see a lot of merit in Liberals.