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One rule for naming judges

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The Quebec government of Philippe Couillard believes the recent request from the Harper government for a list of candidates for the current vacancy on the Supreme Court of Canada is a precedent, giving it a formal role in future appointments. The federal government says this offer is an exception, brought about by extraordinary circumstance.

In fact, it is an 11th-hour attempt by the Harper government to unravel itself from the embarrassing position it finds itself in after bungling the replacement of former justice Morris Fish, who resigned last August. The government saw its choice, Federal Court Justice Marc Nadon, disqualified earlier this year when a Toronto lawyer challenged the legitimacy of the appointment.

Justice Nadon, a semi-retired judge with an expertise in maritime law, was found not qualified because the Supreme Court Act requires nominees to be selected either from one of Quebec's superior courts or from among lawyers who have been a member of the provincial bar for at least a decade. In a March ruling, the Supreme Court said the act required lawyers to be currently practising; Justice Nadon has not worked as a lawyer for 20 years.

The ruling was the sorry result of the Harper government's attempt to manipulate the selection process. On the list of six names it gave to a Commons committee for review were those of four judges at the Federal Court level who had rendered past decisions the Tories regarded as sympathetic to their agenda. At least one of those names would, and did, land on the three-name short list the committee then recommended to the prime minister.

The Supreme Court Act reserves for Quebec three spots on the country's highest court in respect for its historical role in Confederation and to ensure the court is equipped to adjudicate matters touching upon Quebec's unique code of civil law.

A process mired in game playing has now left the Supreme Court short a judge for nine months. The resulting tempest was further exacerbated when the Harper government tacitly accused Chief Justice Beverley McLachlin of trying to interfere with Justice Nadon's appointment. The prime minister has since parried criticism that his remarkable comments not only attacked the integrity of the chief justice, but undermined the independence of an institution that operates as a constitutional check to the power of Parliament and cabinet.

It is an untenable situation that must be resolved quickly to restore the Supreme Court to full strength. But it cannot be done hastily, unwisely and at the expense of introducing an uneven treatment of provinces in the selection process.

The prime minister alone has the power to select Supreme Court appointees and should consult with the political, legal and judicial communities of the relevant provinces in doing so.

Offering the Couillard government an opportunity to draw up a short list, however, effectively revives a condition set out in the failed 1987 Meech Lake accord that would have clipped the unfettered power of the prime minister, requiring him to choose a nominee from candidate lists compiled by the provinces.

Mr. Harper's olive branch to Quebec serves as a convenient quick fix to his personal dilemma. He should know, however, it opens the ground for other provinces to make similar demands -- the Couillard government says it will do so again; the Supreme Court will soon see another Quebec vacancy upon the retirement of Justice Louis LeBel in November.

The prime minister's power to choose Supreme Court judges carries the responsibility of ensuring the court's integrity remains beyond reproach. Mr. Harper has sullied the process, miring it in gutter politics. The prime minister needs to restore public faith in the process, but he must ensure there is a uniform rule to fill vacancies for all regions of Canada through one, untainted process that selects nominees of exceptional quality.

Editorials are the consensus view of the Winnipeg Free Press’ editorial board, comprising Catherine Mitchell, David O’Brien, Shannon Sampert, and Paul Samyn.

Republished from the Winnipeg Free Press print edition May 31, 2014 A16

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