Patronage has traditionally permeated Manitoba's judiciary, and some research suggests politicians such as former public safety minister Vic Toews don't make the best judges.
The Harper government appointed Toews, Manitoba's senior federal cabinet minister and one of the country's loudest law-and-order advocates, to the Court of Queen's Bench Friday, several months after Toews retired from politics.
While in opposition, Toews was a vocal critic of the Liberal government's patronage appointments to the bench and made modest reforms to the vetting process when he became justice minister in 2006. But most of the voting members on Manitoba's judicial advisory committee, which vets would-be judges, have close ties to Toews and the Conservative party. During his years in cabinet, Toews was also highly critical of the bench he now joins, accusing judges of being soft on offenders.
University of Guelph political scientist Troy Riddell, part of a team of academics studying Canada's judges, said some judges with strong political ties make outstanding jurists. But among those considered to be fair or downright bad choices by the legal community, far more were judges with strong partisan links than those considered politically neutral.
In a recent paper, Riddell and his team looked at more than 800 judges appointed by former prime ministers Jean Chrétien and Brian Mulroney. Among those considered by the legal community to be "outstanding," one-third were politically neutral while only 13 per cent were patronage appointments.
When former Conservative premier Sterling Lyon was appointed to the Court of Appeal, his posting raised many of the same questions Toews' appointment has.
Lyon, known for being acerbic and aggressive in politics, opposed the Charter of Rights and Freedoms and an expansion of French-language rights in Manitoba. Many feared his political views would taint his decisions from the bench.
The secrecy of the appointment process was also criticized at the time, and many saw it as a plum reward from Conservative prime minister Mulroney.
Former provincial Liberal leader Charles Huband was already on the Court of Appeal and expected to have the same acrimonious relationship with Lyon on the bench as he did in the legislature.
"It turned out he was very cordial and we got along reasonable well. I would say very well," said Huband.
Lyon occasionally wrote a decision that dissented from the majority, but Huband said Lyon tended to defer to more senior members of the bench, in part because he wasn't as familiar with the law.
Peter Russell, one of Canada's most distinguished political scientists, said Canada's process for picking judges is still mired in partisan politics. In fact, he said, the way most provinces appoint judges to lower courts is far more rigorous, independent and resistant to patronage, he said. Though provincial courts deal with less serious offences, they may be more successful at getting the real cream of the legal crop on the bench.
"By and large, most of the judges appointed (by the federal government) are not bad," said Russell. "But you want to have the best... You can't just be qualified. You need to be the most qualified."
More than 20 years ago, Russell and a colleague scrutinized Mulroney's early judicial appointments and found nearly a quarter had major links to the Tories. They'd been a candidate or party official or key campaigner. Nearly another quarter had minor involvement, such as making a donation to the party.
Those patronage links dropped significantly after stricter judicial vetting procedures were introduced in the late 1980s.
A follow-up study by Riddell and his colleagues found 17 per cent of judges appointed between 1989 to 2003 could be considered patronage picks.
Still, Manitoba's patronage level was much higher than the national average. In Manitoba, Riddell and his team found 43 per cent of judges named by Mulroney and Chrétien had major political connections to the party that made the appointment.
Hubband, who was appointed to the Court of Appeal by the Liberal government, said a political past like his can be an asset on the bench, though the public often sees the appointment as a reward. Huband said he was deeply involved in civil litigation right up to his appointment and so found the transition fairly easy.