Law Times

PAGE 4 NEWS September 21, 2009 • Law timeS Judicial appointment process raises alarm BY TIM NAUMETZ For Law Times OTTAWA – Th e lack of trans- parency in federal judicial ap- pointments has come under fi re after the Harper government fi lled a series of bench vacancies across the country recently. Th e newly elected head of the Canadian Bar Association and other lawyers are calling for a major overhaul, including a re- quirement that the prime min- ister or cabinet ministers recuse themselves from appointment decisions if they were involved in civil suits where judicial ap- plicants have presided. Th e latest round of debate on the topic stems in part from what even critics of the sys- tem are calling an impeccable choice for the Ontario Supe- rior Court of Justice. Earlier this month, Jus- tice Minister Rob Nicholson announced the elevation of Robert Beaudoin, a case man- agement master in the eastern division of the Superior Court, to its trial division. But NDP MP Joe Comar- tin, a lawyer and his party's jus- tice critic, says Prime Minister Stephen Harper should have excused himself from the cabi- net decision confi rming Nich- olson's recommendation to put Beaudoin on the bench. Beaudoin, with a stellar ca- reer in court administration and as a master in addition to his work abroad on the reform of justice systems in other coun- tries, coincidentally presided in a motion in a libel suit a former Conservative member launched against Harper and his party. In 2007, Beaudoin ruled on a motion from Harper's lawyer to confi rm that parlia- mentary privilege prevented the plaintiff , Ottawa lawyer Alan Riddell, from compel- ling the prime minister to testify or even appear for cross-examination while Par- liament was in session. Lawyers who know Be- audoin from his long career and also his work in the re- form of Ontario's civil jus- tice system say there is no question about his qualifi - cations for the bench or any chance at all of a confl ict while serving as a judge. But the appointment add- ed a new wrinkle to the de- bate over recent changes by the Conservative government to the process of judicial ap- pointments. What if a prime minister or cabinet minister has been in- volved in a civil suit where a trial judge applying for promotion to an appeal division has presided? Th e same question could ap- ply for case management mas- ters, who often rule on motions within civil suits, when they seek promotion to the bench. New CBA president Kevin Carroll says that in the case of trial judges applying for eleva- tion to appeal divisions, a min- ister or prime minister who has been subject to litigation in front of the judge should stay at a dis- tance from the appointment. Beaudoin's ruling in the Riddell v. Conservative Party of Canada lawsuit was based in part on recent precedents in The CBA remains opposed to changes to judicial appointment advisory com- mittees, says Kevin Carroll. which the same form of par- liamentary privilege prevented civil plaintiff s from compel- ling former fi nance minis- ter Paul Martin and former deputy prime minister John Manley to testify in lawsuits against their departments. Carroll noted that elevations to appeal divisions are the re- sponsibility of the prime min- ister on recommendations from the justice minister, and consul- tations between the two offi cials in those cases are routine. "I would expect, though, that if there is such a close re- lationship between the appli- cant and a particular cabinet minister, that cabinet minis- ter should excuse himself or herself from the process so as to avoid any taint or bias," Carroll tells Law Times. He says CBA opposition to the Harper government's amendments to judicial ap- pointment advisory commit- tees stands, notably the inser- tion of a nominee from the police community and the designation of the provincial bench nominee as a non-vot- ing chair of the committee. Th e CBA also wants a "cooling-off period" for for- mer MPs or provincial MLAs who apply for judicial posi- tions to prevent them from appointment for two years after they leave offi ce. Th e advisory committees are composed of one nominee of the provincial chief justice, one member nominated by the province's law society, one nominated by the CBA, one by the province's attor- ney general, one by the "law enforcement community," and three nominated by the federal justice minister. Ottawa lawyer Ian Stauff er, president of the County of Car- leton Law Association, adds his voice to those who say the prime minister or cabinet min- isters should excuse themselves from the appointment of judges who may have had a role in civil suits that involved them. "I would certainly agree with Talk Transfer Let your voice work with mobile dictation and speech recognition Transcribe Dragon NaturallySpeaking 10 automatically transcribes your dictations Create documents three times faster than most people type, with up to 99% accuracy Up to 140 hours recording time Extra large front speaker for crystal-clear voice playback C Product Code: 72650026 Philips Digital Voice Tracer with Dragon NaturallySpeaking 10 *Stereo lapel microphone and earphones included that," Stauff er tells Law Times. "It's just the apparent confl ict of interest, obviously. Th at minis- ter might feel negatively toward that trial judge or that master." Nicholson's offi ce declined to say whether Harper recused himself from the cabinet deci- sion on Beaudoin's appointment or whether the justice minister was aware of the new judge's de- cision in the libel case. A spokesman for Harper also declined to respond to the question, describing it as "silli- ness" and saying Beaudoin is a "highly respected jurist whose integrity is above reproach." Spokesman Dimitri Soudas noted Justice Charles Hackland of the eastern division was pro- moted to regional senior judge by the Harper government af- ter he made an "unfavourable ruling" towards the prime min- ister in the Riddell case. In that instance, Hackland awarded Riddell costs for a motion that he won over the cross-examination of Harp- er's chief of staff but reduced the amount from the roughly $7,000 Riddell had requested to just over $2,000. Coincidentally, Hackland became the case management judge in another libel suit in- volving Harper after he was el- evated to the senior position. In that lawsuit, which Harp- er launched against the Liberal Party of Canada, Hackland ad- journed the proceedings at the request of the prime minister's counsel shortly before a hear- ing that was to take place dur- ing the 2008 federal election. Lawyer Richard Dearden told Hackland he couldn't reach Harper for adequate in- structions because he was oc- cupied with the campaign. Harper later dropped the law- suit after Stéphane Dion stepped down as Liberal leader. For lawyers, while the legal issues at hand in those rulings may be minor, the appearances become a concern when se- nior politicians make judicial appointments involving the same people who presided over them. "I don't think there is any question the person should recuse themselves from that situation because there is an apparent confl ict of interest," says Stauff er. LT Been in Law Times? Want a record of it? Promote your law firm by ordering reprints of articles from the voice of the profession — Law Times! 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