Law Times

PAGE 4 NEWS JUNE 9, 2008 / LAW TIMES Politicians get more say in selecting SCC justices A BY ROBERT TODD Law Times government adequately balances judicial independence with the public's right to know, say Ontar- io lawyers. But the system must be guarded to ensure partisan politics don't creep in, they add. Edward Ratushny, a profes- sor at the University of Ottawa's Faculty of Law, notes that the new selection process for Supreme Court judges unveiled by the federal the selection procedure to fill a vacancy left by the departure of New Brunswick's Justice Mi- chel Bastarache at the end of the court's spring session, June 30. The process will begin with Nicholson consulting attorneys general of the Atlantic provinces and key members of the legal community to find a set of quali- fied candidates. That list will be referred to a selection panel made up of five members of Parlia- ment, consisting of two govern- ment MPs and one member from promoting public understand- ing of the individual nominee and the role of the court." "I believe that empowering parliamentarians helps promote greater transparency in the se- lection process for the Supreme Court of Canada," said Nichol- son in a release. While acknowledging the MP selection panel is a small change, Ratushny says he doesn't think it's necessary to give politicians this new power. "I would be concerned that The process has some serious concerns. If members get out of hand and want to get into political issues, as this progresses, you might see more and more of a likelihood of that happening, if you have a number of these hearings. government has given politicians an additional say in the process with the creation of the new five-member selection panel. "It's relatively modest — the each of the opposition parties. The panel will pass a short- government is in a position to provide the list of what it con- siders to be valid candidates, and then the members reduce it to three," he says. "It seems to me that if you're going to involve members of Parliament, this is a reasonable step to be adopting." Justice Minister Rob Nich- olson announced May 28 that a three-step process will guide DD LT RXTHRDE-06 S&R ad 5/27/08 12:36 PM Page 1 list of three candidates to Prime Minister Stephen Harper and Nicholson, with the prime min- ister making the final selection. The process will end with the nominee appearing before a public hearing of an ad hoc parliamentary committee, similar to the process used when Justice Marshall Roth- stein was nominated in 2006. Nicholson said the ad hoc committee hearing is an attempt at "enhancing the transparency of the appointments process and there may be someone that the executive would really like to appoint who was left out of that list of three, and I think the ex- ecutive should have the author- ity to do that," he says. "Having said so, if the prime minister is willing to sacrifice that opportunity for, quote, 'em- powering' MPs to this limited extent, I don't see that it's some- thing that's particularly wrong." Ratushny says the hearing pro- cess "went fabulously well" with the Rothstein nomination: "Ev- eryone was on their best behav- iour, and if there's a similar pro- cess this time, I don't see any harm in it," he says, adding the process may help foster better public un- derstanding of the new judge. He adds, however, that the process could go awry if some key steps aren't taken. "The process has some seri- ous concerns. If members get out of hand and want to get into political issues, as this progresses, you might see more and more of a likelihood of that happening, if you have a number of these hearings," says Ratushny. "But then again, maybe the protocol will be established that you don't ask questions that are impossible for the candidates to answer," he adds. Ratushny says the process also could be problematic if a candidate said something during the hearing that the government didn't like. He says if the government chose to retract the nomination, contro- versy would closely follow. Eugene Meehan, chairman of Lang Michener LLP's Supreme Court practice group in Ottawa, says it's vital that the public hear- ings not devolve into the state of partisan confirmation hearings in the United States. Meehan says that if Canada brought in a system similar to the U.S., "the risk is that only the bland will apply, and the blandest of the bland will be appointed." Meehan says there's an innate Dye & Durham Search & Registration Services connects you to over 40 Search & Registration services. Your ONE-Stop Service Provider. that affect their lives, and judges' desire for professional indepen- dence and personal privacy. But he says combative public hearings won't fix that conflict. "No one should think that the testimony of U.S. nominees to the U.S. Supreme Court will provide penetrating insights into the thinking of future judges," says Meehan. "The time is too short, and the atmosphere in the U.S. is too partisan." If steps are taken to make sure questions at the hearings are care- fully placed to elicit meaningful responses, the new Canadian Supreme Court selection process could serve both the public and judges' interests, he says. "It's a well-calibrated balance conflict between the public's right to know about the people who will make vital decisions between the American extreme of openly partisan hearings and the prior Canadian extreme of nearly complete secrecy," says Meehan. Ratushny says some candidates may be turned off by the idea of having to appear for questioning before a public hearing, but notes that any misgivings likely would be outweighed by the opportu- nity to sit on Canada's top court. "There are bound to be peo- ple who prefer not to do it, but appointment to the Supreme Court of Canada is a pretty prized office amongst judges and lawyers in Canada, and if the cost of receiving that ap- pointment is that you have to appear before a committee, I don't think it's going to prevent anyone from letting their name stand," says Ratushny. LT Insurance Our goal?… Your Financial Security! Interested in premium savings, superior protection, and prompt, personal attention for ALL of your Family and Business insurance needs? Then trust the RIBO licensed insurance professionals at: Try or Securities Searches/Due Diligence and have DINNER ON US It's easy Search & Register on-line direct through dd>DIRECT or try Securities Searches/Due Diligence - FULL SERVICE. by visiting e-servicedd.ca Give us your feedback, call or email with your comments and receive a $25.00 CARA GIFT CERTIFICATE (good for Milestones, Kelseys, etc.) For information contact your Sales Representative or contact Kim Hines at kim_hines@dyedurham.ca or 416-204-3159 / 1-800-668-8208, ext. 3159 Offer expires June 30th, 2008. One offer per new use. Excludes government fees & taxes. yourONE source supplier for For information on DD Direct Access contact Kim Hines Office & Furniture Products • Corporate Promotional Products Printing & Graphic Services • Law Office Essentials Corporate Supplies • Search & Registration Services eservicedd.ca • Phone: 1-800-668-8208 • Fax: 1-800-667-3146 www.lawtimesnews.com DON'T COURT DISASTER Keep up-to-date on the latest judicial developments by reading Law Times CaseLaw on pages 14-15 Ryan Guthrie info@guthrieinsurance.com - www.guthrieinsurance.com Economical, innovative, insurance plans for 416-487-5200 • 1-888-310-SAVE 505 Consumers Rd., Toronto ALL of your, and your clients, Home, Business, Auto, Life and Leisure insurance needs. Helping families and business arrange quality insurance protection for over 40 years. yan Guthrie CAIB, CIP President Guthrie Insurance Brokers INTRODUCTORY OFFER

• Cover