Law Times

Page 6 June 9, 2014 • Law Times www.lawtimesnews.com COMMENT Judicial appointment process a mess ith the federal government repeatedly decrying the number of unfilled jobs in this country due to skill shortages, it's ironic that it seems to be taking its time filling some of the country's top judicial vacancies, es- pecially since there's no shortage of qualified candidates. The evidence is building that the government's approach to judicial appointments is a mess. As Law Times reported last week, University of Ottawa Faculty of Law Prof. Adam Dodek has raised concerns about a "transparency" deficit in the process for nominating Supreme Court judges. It came amid reports the government had tried to stack the short list of potential candidates last year with several federal court judges during the process leading up to the now-failed nomination of Federal Court of Appeal Justice Marc Nadon. He was to replace justice Morris Fish following his retirement last summer, and the position sat vacant until this week's express appointment of Justice Clément Gascon of the Quebec Court of Appeal to the post. Who knows what process the gov- ernment will follow to fill the next looming vacancy at the top court? Similarly, the government has left the position of Ontario's top judge vacant since former chief justice Warren Winkler retired in December. It's a long time for the post to sit empty and it's not as if the government didn't know Winkler's retirement was coming. By comparison, it swiftly appointed Winkler to the job in June 2007 fol- lowing former chief justice Roy McMurtry's retirement that spring. It all adds up to a haphazard process with what appears to be signifi- cant interference by the executive of the federal government. That may Harper ignores Supreme Court in new prostitution law he Conservative government brought down anti-prostitution legislation last Wednesday that makes things almost impos- sible for sex workers, police, and judges. In fact, women are complaining that under the legislation, the situation will be worse than ever for sex workers. Justice Minister Peter MacKay boast- ed the legislation would make selling sex legal while outlawing paying for it. The Supreme Court gave the federal government a year to come up with legis- lation that would ensure the safety of sex workers and protect them from exploita- tion. But the new legislation does nothing to make things clearer or easier for anyone, including police, lawyers or judges. It's far from clear if it will meet what the Supreme Court intended in its decision on the issue. The bill says sex workers can work out of their homes but not in brothels or bawdy houses. They can have bodyguards but not pimps or anyone who might be exploiting them. MacKay called those who would use sex workers "perverts." A receptionist, cleaning lady or taxi driver who takes them around wouldn't be "exploiters," according to the govern- ment. Their children can be in the home even when clients come visiting but they can't have someone else's kids around. Having underage sex workers learning the trade at home would be criminal. The legislation would force controversial discretionary de- cisions on police and the courts. It would make it illegal for sex workers to ply their trade in any place where they could reasonably expect children to be present. That covers school- yards, malls, theatres, and all sorts of public places. But what about a public park at 4 a.m.? Could we reason- ably expect children to be there? And if so, what are they doing there? The bill forbids escort services from advertising in newspapers, magazines or anywhere kids can see the ads. Robocalls are out. But what about escort ads on the walls of bar bathrooms? Are half-dressed sex workers on street corners waving at passing cars advertising their services? What about a red light in the window? MacKay nicely summed up what the Conservative government is really trying to do. He said proudly at a news confer- ence: "The sale of sex has never been ille- gal in Canada, but today we are changing that." That's what sex workers are saying. The government is using the legislation to put them out of business and that's not what the Supreme Court of Canada ruled last December. Sex workers will no longer be able to advertise as escorts in newspapers or magazines but they may still work on street corners or in dark allies. MacKay's hope is they'll work from their own homes. But cops will still be able to sit in their cruisers outside the home and arrest the clients as they come back outside with smiles on their faces. Police can charge sex workers if they work in the presence of others who happen to be under age 18. The younger-looking ones will want to carry around proper identity cards. Maybe Prime Minister Stephen Harper can supply them with one of his new voter identity cards. The legislation is a mess that will spell nothing but trouble for police and the courts as well as for society. MacKay made it clear what the Con- servatives want to do: "The bill recognizes that the vast majority of those who sell sexual services do not do so by choice. We view the vast majority of those involved in selling sexual services as victims." And making it more difficult to be a victim must be part of the Conservative plan. How else to explain it? The bill, dubbed the protection of communities and exploited persons act, will put a heavy emphasis on fines for those who purchase sexual services in public places. MacKay's legislation is neither the New Zealand model, where prostitution is legal, nor the Nordic approach in Norway, Swe- den, and Denmark, where the law makes criminals out of clients. MacKay calls his legislation a "Cana- dian model" because, he says, "no model that involves full decriminalization or legalization will ever make prostitution a safe endeavour." Sex workers who put faith in last De- cember's Supreme Court ruling are al- ready lining up lawyers to take the legisla- tion back to the top court to get the Harper government to read over what the judges already said on the issue and put into prac- tice what they told it to do. LT Richard Cleroux is a freelance repor- ter and columnist on Parliament Hill. His e-mail address is richardcleroux@rogers. com. ©2014 Thomson Reuters Canada Ltd. All rights reserved. No part of this publication may be reprinted or stored in a retrieval system without written per- mission. The opinions expressed in articles are not necessarily those of the publisher. Information presented is compiled from sources believed to be accurate, however, the publisher assumes no responsibility for errors or omissions. Law Times disclaims any warranty as to the accuracy, com- pleteness or currency of the contents of this pub- lication and disclaims all liability in respect of the results of any action taken or not taken in reliance upon information in this publication. Publications Mail Agreement Number 40762529 • ISSN 0847-5083 Law Times is published 40 times a year by Thomson Reuters Canada Ltd. LT.Editor@thomsonreuters.com CIRCULATIONS & SUBSCRIPTIONS $179.00 + HST per year in Canada for print and online (HST Reg. #R121351134), $145 + HST per year for online only. Single copies are $4.50. Circulation inquiries, postal returns and address changes should include a copy of the mailing label(s) and should be sent to Law Times One Corporate Plaza, 2075 Kennedy Rd. 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Glenn Kauth Staff Writer . . . . . . . . . . . . . . . . . . . . . . . .Yamri Taddese Staff Writer . . . . . . . . . . . . . . . . . . . . . . . . . Arshy Mann Copy Editor . . . . . . . . . . . . . . . . . . . . . . Mallory Hendry CaseLaw Editor . . . . . . . . . . . . . . . . . Adela Rodriguez Art Director . . . . . . . . . . . . . . . . . . . . . . Alicia Adamson Production Co-ordinator . . . . . . . . . . . . . Catherine Giles Electronic Production Specialist . . . . . . . Derek Welford Law Times Thomson Reuters Canada Ltd. One Corporate Plaza, 2075 Kennedy Rd., Toronto, ON • M1T 3V4 • Tel: 416-298-5141 • Fax: 416-649-7870 www.lawtimesnews.com • LT.Editor@thomsonreuters.com • @lawtimes • LT.Editor@thomsonreuters.com • @lawtimes u Editorial obitEr By Glenn Kauth be the executive's privilege, but it's clear we deserve better. One reasonable approach came in comments from lawyer Bill Trudell in last week's Law Times ar- ticle on Supreme Court appointments. Trudell, who has sat on an appointment committee for judges in Ontario, says the federal government should adopt a similar apolitical protocol where it chooses a judge from a list given to it by the selection committee as opposed to the other way around. In that way, the government has nothing to do with the application, screening or interview processes, he noted. The government wouldn't like diluting its pre- rogative but it has unfortunately undermined its credibility through its more recent actions. With confidence in the judiciary of paramount concern, we need a more consistent and transparent process for naming our top judges. — Glenn Kauth W The Hill Richard Cleroux T

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