Widespread criticisms of Prime Minister Stephen Harper’s judicial appointments raise the question of the yardstick against which critics can fairly measure him. Identifying the relevant standard and assessing these criticisms call for distinguishing appropriate political factors in judicial selection from inappropriate ones.

Some of the critics appear to succumb to a fallacy: the notion that, ideally, the executive should name the individual identified in a politically neutral process as most-qualified. It’s a fallacy because there is no neutral way of identifying the most-qualified candidate. We can devise screening processes by which people across the political spectrum would exclude some candidates as unqualified and identify others as qualified. From the latter group, they might even agree on a subset of highly qualified candidates. When it comes to designating the best from such a subset, however, reasonable people will differ.

Purportedly objective criteria provide no solution. One candidate might narrowly edge out another — having published one academic paper more or practised for six months longer. It’s silly to suppose that a minute difference in overall score from a complex, multifactored evaluation would designate the better judge over the next 20 years. At some point, a subjective choice is necessary.

Distinguishing three issues provides a basis for reviewing the recent charges about Harper’s judicial appointments.

The first is the composition of the candidate pool. The decision-maker should draw from a pool of highly qualified candidates. Choices within such a pool should yield top-notch judges.

The second issue is the basis for selecting within such a pool. A candidate’s view of the judicial role and general political philosophy may be relevant to the executive’s exercise of its appointment power in service of its conception of the public good. It’s appropriate that Harper, a Conservative, should select different individuals than would Prime Minister Tom Mulcair. Indeed, NDP voters would be understandably angry if changing the government had no impact on judicial appointments. Such political screening is legitimate and reflects the constitutional arrangement entrusting such appointments to politically accountable actors.

By contrast, partisan political screening is inappropriate. Candidates’ service to the governing party should not be their chief qualifying feature. Neither, however, should it disqualify them or presumptively taint their appointment. Former politicians and party stalwarts have made distinguished judges.

Beyond the idea of the best-qualified candidate, concerns about the judiciary as a whole may appropriately condition the choice. For example, the executive may legitimately consider the need for a province’s trial judges to include a mix of former prosecutors and defence lawyers and of judges able to conduct proceedings in French. The executive may even redefine excellence, notably where traditional standards perpetuate exclusion. When the federal government named the first woman to the Supreme Court of Canada, Bertha Wilson would not have topped any screening committee’s list as most-qualified candidate by the orthodox criteria. Whatever strengths she brought to her work, she didn’t boast a distinguished record as a litigator and a workhorse on Law Society committees.

The third issue concerns candidates’ involvement in the process. It is unseemly to promote lobbying or anything that would imply judges are beholden to the party that named them.

The lens of these issues shows the recent criticisms to vary in gravity. Some concerns touch the composition of the candidate pool, which touches the quality of judges. The Harper government’s elimination of the “highly recommended” category from designations that selection committees are permitted to use has effectively reduced the information sent by the committee to the justice minister, expanding the latter’s discretion. Such a move might foreseeably lower the calibre of judges. In addition, in the view of some Court watchers, Harper has named one or more Supreme Court judges from outside their province or region’s pool of most highly qualified candidates.

Turning to candidates’ involvement in the process, facts recounted in stories published in the Globe and Mail give grounds for worry. For example, some readers might plausibly think that involving a candidate in a series of get-to-know-you breakfasts and lunches with Conservative Party insiders crosses a line.

Lastly, many critics have emphasized the supposedly conservative outlook of recent appointees to the Ontario Court of Appeal and the Supreme Court of Canada. Provided those individuals merited inclusion in a pool of highly qualified candidates and weren’t drawn into lobbying, favouring them based on their political philosophy needn’t be inappropriate.

In short, not all the conduct of concern to critics transgresses the appropriate standard for judicial appointments to the same degree — or at all. Admittedly, our secretive process makes for scant evidence about the candidate pool and lobbying for appointment, matters I suggest rightly raise concerns. It’s easier to draw inferences about the choice of candidates based on their political philosophy, as many critics have done. Still, distinguishing appropriate from inappropriate political factors in this matter would help critics of an opaque business to be fairer and more transparent in theirs.

Robert Leckey
Avocat émérite du Barreau du Québec, Robert Leckey est doyen de la Faculté de droit de l’Université McGill et titulaire de la Chaire Samuel Gale.

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