The partisan judiciary

As usual, if you want to know what a political party is really up to, look at what they accuse their opponents of doing:

The Liberal government relies on a large network of party officials and supporters to decide which lawyers receive sought-after judicial appointments, e-mails obtained by The Globe and Mail show.

Liberal MPs, ministerial staff members and even party volunteers have been involved in candidate vetting since the federal government revamped the process in 2016, after having accused the previous Conservative government of politicizing appointments.

In the United States, where the process of appointing judges is blatantly based on partisan loyalties, you pretty much have to belong to the President’s political party if you ever want to make it to the Bench. Here in Canada, um…

The dozens of e-mails between ministerial staffers from 2017 and 2018 detail widespread partisan involvement in the selection of new judges, offering unprecedented insight into the inner workings of the current judicial appointment process. The e-mails also show clear tensions during that time frame between the minister of justice’s office, which handles the appointment process, and the Prime Minister’s Office, which collaborates on those decisions.

The PMO ensures Liberal MPs are consulted on all nominations in their ridings, the e-mails show, using the judicial candidates’ postal codes to determine where they live. In 2018, a member of the PMO’s appointment branch asked then-justice minister Jody Wilson-Raybould’s office for the results of MP consultations for more than a dozen candidates, despite the concerns of her judicial affairs adviser, François Giroux.

[…]

The Globe reported last year that the PMO also vets potential candidates with a private Liberal Party database called Liberalist to see whether they had given money to the party in recent years, participated in party activities and even put up Liberal election signs.

Honestly, none of this comes as a surprise, and I’ll go even further and say involvement with the governing political party shouldn’t disqualify you from being appointed as a judge. We lawyers are definitely over-represented in government and politics – heck, the reason I went to law school was because I didn’t know what else I could do with my political science degree – and being a party hack doesn’t mean you aren’t qualified.

My only wish is that we stop pretending this doesn’t happen.

Smearing Justice Joyal

They told me if I voted for the Conservatives we’d have blatantly partisan interference in the judicial system, and they were right!

The Trudeau government’s latest excuse for LavScam: Jody Wilson-Raybould was a social conservative deep-cover operative trying to appoint an extreme right-winger to the Supreme Court of Canada. Or something like that.

Relations between Prime Minister Justin Trudeau and then-Attorney General Jody Wilson-Raybould first began to fray in 2017 over concerns about her choice to fill a vacancy on the Supreme Court of Canada.

A year before cabinet discussions about a plea deal for Quebec engineering company SNC-Lavalin, Trudeau and Wilson-Raybould disagreed about her recommendation of Manitoba Justice Glenn D. Joyal, sources familiar with the matter tell CTV News.

Trudeau was concerned that Joyal wasn’t committed to protecting rights that have flown out of interpretation of the Charter of Rights and Freedoms, particularly LGBTQ2 rights and even abortion access, neither of which are specifically enshrined in the Charter.

[…]

The Prime Minister’s Office was concerned about views Joyal expressed in a speech to the Canadian Constitution Foundation’s Law and Freedom Conference in the January 2017, in which he discussed about the way courts were interpreting the Charter, ushered in by Trudeau’s father.

“It may be one of the bitter ironies of Pierre Elliott Trudeau’s Nation Building strategy of the 1980s, that despite the celebration and promotion of the Charter, it has led to an institutional imbalance that dilutes a source of Canadian distinctiveness,” he said in the speech.

Joyal argued for a rebalancing the relationship between the courts and legislative branch.

“I would hope and have every reason to believe, that this would signal the beginning of a true dialogue with the courts, where the resulting policies would, I suspect, reflect a traditionally pragmatic and uniquely Canadian mix of liberal and non-liberal values.”

His speech raised concerns that Joyal, if appointed, would be less willing to protect rights that are based on a broader interpretation of the Charter.

This is truly baffling, since I’ve been assured that unlike those nasty Americans, Supreme Court Justices in Canada are appointed strictly based on merit and not because of how the Prime Minister thinks they might decide hot-button issues.

Joyal, for his part, says he withdrew his name from consideration because of his wife’s breast cancer:

In a statement Monday, Joyal made no mention of Wilson-Raybould, but said that although he applied for the position of Supreme Court justice, he had to withdraw for personal reasons related to his wife’s health.

“In 2016, the Office of the Commissioner for Federal Judicial Affairs announced an independent and non-partisan application process for appointments to our highest court. The confidential process assesses each candidate on their merits,” Joyal told Global News in an emailed statement.

“Ultimately, I had to withdraw my application for personal reasons, due to my wife’s metastatic breast cancer. Regrettably, that detail was omitted from the now-published media reports for which I was given no opportunity or, in one case, approximately one hour to respond to.

“I fear that someone is using my previous candidacy to the Supreme Court of Canada to further an agenda unrelated to the appointment process. This is wrong,” Joyal continued.

Ever since the Charter of Rights and Freedoms took effect in 1982, judges, lawyers and academics have wrangled with the question of how the powers of the judiciary and the legislature should be balanced. That’s what Joyal was talking about. And intellectually honest people know raising these points doesn’t make you a bigot.

Which is precisely why Sheila Copps says Joyal is a bigot (and a “homophone”):

As long as Copps is around, Frank D’Angelo will not be the most embarrassing person ever to come from Hamilton.

The silence of Jody Wilson-Raybould

I’ve seen Liberal Facebook friends trying to downplay the brewing SNC-Lavalin scandal by noting that former Justice Minister Jody Wilson-Raybould hasn’t come out and said that the Prime Minister’s Office tried to interfere in its criminal prosecution.

They’re technically correct, because Ms. Wilson-Raybould is not allowed to say anything about it until the Prime Minister lets her do so:

Until Justin Trudeau waives solicitor-client privilege, we’re left to speculate about whether Wilson-Raybould was forced out because she couldn’t speak French, or because of Scott Brison’s resignation, or because the Patriots won another Super Bowl. ‘Tis a mystery for the ages

For those keeping score at home, during the comparatively quaint Mike Duffy expenses scandal, then-Prime Minster/history’s greatest fascist monster Stephen Harper instructed his lawyer to waive solicitor-client privilege protecting his PMO documents from the RCMP.