A patronage critic on Queen's Bench

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This article was published 7/3/2014 (2078 days ago), so information in it may no longer be current.

He was once a relentless critic of patronage appointments to the bench, pummelling the Liberals for choosing Grit-friendly judges.

Now, after nearly six years of speculation, former Conservative cabinet minister Vic Toews has been named to Manitoba's Court of Queen's Bench, thanks to a vetting system he helped create and a committee stacked with his supporters.

Toews replaces Justice Donald Bryk in the court's general division, which hears criminal and some civil cases. Toews' appointment was announced Friday and sparked questions not only about the appointment process but also about Toews' ability to be impartial and fair, given his vocal support for the Conservatives' tough-on-crime agenda and his disdain for judicial activism.

Kate Kehler, acting executive director of the John Howard Society of Manitoba, said the presumption of innocence has already been eroded by lengthy stays in remand before trial.

"And now we have a federal appointment to the Queen's Bench of a former public safety minister who, while in that role, espoused often extreme views that other legal experts, such as the Canadian Bar Association, noted were not based in evidence," she said.

As attorney general and then public safety minister, Toews was a vocal proponent of mandatory minimum sentences, the elimination of house arrest for some crimes and tougher rules for repeat offenders.

Many at Winnipeg's Law Courts reacted to the appointment with raised eyebrows Friday, with some questioning the optics of it, given Toews' well-established views. None would go on record, most loath to criticize a judge they will likely appear before.

Winnipeg lawyer Evan Roitenberg, who sits on the board of the Canadian Council of Criminal Defence Lawyers, said he expects Toews will do what all judges must — evaluate evidence in a fair and independent manner.

"What people did in their past positions generally should be forgotten when they go to the bench," he said.

Toronto lawyer Bill Trudell, national chairman of the defence lawyers council, echoed Roitenberg's views, saying he expects Toews to honour the office by behaving impartially.

"Once someone becomes a judge, it's a new role, it's a new world. Whatever their political affiliation was before, whatever stances they took before, it would be expected those would be parked," Trudell said.

Lawyers often don't know what personal biases are at play when they appear before a judge. In Toews' case, his views are well-known, Trudell said.

"At least we know where he's coming from and can confront it in arguments," he said.

Toews resigned from Parliament last summer after prolonged speculation he was angling for a judicial appointment. In recent years, multiple sources have suggested Prime Minister Stephen Harper favoured a cooling-off period before Toews could be considered for a judgeship. While in opposition, Toews hounded the Liberal government over its judicial-appointment process, accusing then-justice minister Irwin Cotler of exploiting a "Liberal process, controlled by Liberals, for Liberals," and stacking the bench with party supporters.

When he became attorney general following the 2006 election, Toews made three key changes to the judicial-appointment system, most of which did little to make theprocess less secretive, said University of Guelph political scientist Troy Riddell, who studies judicial appointments.

Toews added a police representative to the advisory panel that vets potential judges in each province, a move condemned by many, including national lawyers' groups and the chief justice of the Supreme Court of Canada.

In Manitoba, it resulted in longtime Winnipeg Police Association president Mike Sutherland's appointment to the Federal Judicial Advisory Committee for Manitoba, where he still serves.

Toews also changed the way the provincial advisory committees forward possible appointments to the justice minister. Before, would-be judges could be recommended, not recommended or highly recommended. That allowed the committee to clearly highlight superior legal minds, perhaps above political affiliation.

Now, recommendations are made to the federal justice minister based on a simpler designation, either recommended or not recommended. What other names are in the mix are kept secret, so it's not clear who Toews might have beat out for the Queen's Bench appointment.

Also in 2006, Toews stripped the chair of the advisory committees — in Manitoba, currently Queen's Bench Justice Brenda Keyser — of voting rights.

Currently, the majority of voting members on Manitoba's judicial advisory committee have close ties to Toews.

Marni Larkin is a top Conservative strategist who ran the party's last provincial campaign, served on the party's national council and quarterbacked several local riding races. Ken Lee is a senior strategist and fundraiser for the provincial party. John Tropak, a Winnipeg video-store owner, has donated at least $5,400 to the Conservative party in recent years and was rumoured to be a contender for a Senate appointment. And Mike Sutherland has been a Toews ally. Toews awarded Sutherland a Diamond Jubilee medal in 2012 and last year appointed him to the Canadian Firearms Advisory Committee.

Toews will make $288,000 as a Queen's Bench judge and is also eligible for a federal pension worth $79,000 annually and a provincial pension for his five years as a provincial MLA.

While an MLA running for re-election in the 1999 race, Toews violated the province's Election Finances Act. In 2005, he pleaded guilty to spending more than the allowable limit and was fined $500.

maryagnes.welch@freepress.mb.ca