Canadian Lawyer

46 O C T O B E R 2 0 1 5 w w w . C A N A D I A N L a w y e r m a g . c o m Whether Duffygate resonated with the public remains to be seen. We'll know clearly on Oct. 19. The irony is Harper's political survival might turn on that judicial event. When it comes to court cases and the judiciary, the prime minister has had what can only be described as a tumultuous relation- ship. His government has lost a number of cases at the top court, everything from Senate reform, which is drastically needed, to creating a national securities regulator, prostitution, and mandatory minimum sentences. It reached a low point in 2014, when he and Supreme Court of Canada Chief Jus- tice Beverley McLachlin got into a public dust-up over who said what and when in the ill-fated appointment of Justice Marc Nadon to the top court. Frankly, I found the Harper-McLachlin affair entertaining, and somewhat refresh- ing. I rather admire a politician who is willing to risk political capital and take aim at a judge or two, since there seems to be this unwritten rule in Canada that judges are beyond reproach, and it is unseemly to criticize them. Since the advent of the Charter, judi- cial decisions have had tremendous conse- quences in terms of shaping social policy, defining rights, and determining how finite government resources are spent. Courts have taken on a greater role as alternative lawmaker, bound by few restraints, unlike parliamentarians, who must answer to an electorate every four years. Harper's relationship with the legal pro- fession has been rocky, starting from his move in 2006 to introduce parliamentary hearings for the appointment of Supreme Court judges — a proposal first put for- ward by Liberal prime minister Paul Mar- tin to improve transparency in the opaque appointments process. It was heavily criticized at the time by many in the profession, who felt parlia- mentary hearings would somehow politi- cize the judicial appointments process and embarrass appointees. Lorne Sossin, who was then a University of Toronto associate law professor and now dean at Osgoode Hall Law School, called such public hear- ings "flawed and ineffective." McLachlin also expressed reservation and concern that changing the secretive way that judges are picked could undermine the public's confidence in the top court. That ignores the fact the judicial system is one of the most political institutions within our governing system. Judges can take care of themselves, and if they want something to happen — or not — they exercise their powers of judicial indepen- dence to get it. Others, however, felt the proposed process didn't go far enough, and judg- es should be canvassed on their political views and judicial thinking. The first hearing appointing the now- retired justice Marshall Rothstein went reasonably well, prompting constitutional expert Peter Hogg, who was part of the proceeding, to deem it a success and write that it would have been a mistake to impose limits on questions parliamentarians could ask, which he first considered. Even Nadon skated through the hearing process. The only public embarrassment he suffered was at the hands of his fellow judges, who shot down his appointment, sending a message to every Quebec judge on the Federal Court that they are not wor- thy. How does that ruling instill public con- fidence in Federal Court rulings? Judges have certainly turned the law on its head at times to read things in to legislation that aren't stated. It's interesting the top court chose not to in Nadon's case. Having lost his battle with the Supreme Court to appoint his candidate of choice, Harper abandoned the parliamentary hear- ing process for justices Clément Gascon, Suzanne Coté, and Russell Brown, ironi- cally prompting howls of outrage from the same quarters that once poo-pooed such hearings. Is that because his appointments aren't liberal enough? Unfortunately, we don't know because Harper has taken his judicial appointment bat and ball and gone home, leaving media to speculate on his appointees' political and judicial views. Too bad, judicial appointment reform could have been one of his legacies; instead, it is now an anchor. Meanwhile, McLachlin has sailed through unscathed. An August 2015 Angus Reid poll found Canadians have more con- fidence in the Supreme Court (61 per cent) than Parliament (28 per cent). Overall pub- lic opinion of the court is favourable (74 per cent). Like I said, judges can hold their own with politicians any time. I say bring back the parliamentary hearings and let those who want to sit on the high court tell the public why they are worthy, their political bent, and views on judicial philosophy. Then maybe we will have a more transpar- ent appointment process, one that doesn't pit politicians against judges but enlightens and instills public confidence in our judi- cial system. Jim Middlemiss is a principal at WebNewsManagement.com. B A C K PA G E O P I N I O N @JimMiddlemiss By Jim Middlemiss s I write, the Mike Duffy trial is on hold but nearing the end and Canada is in the throes of an election that will either anoint Stephen Harper to another term, much to the chagrin of his critics, or exalt one of his two opponents to prime minister. The Duffy trial exposed Harper to daily media grilling. It was as if Harper and his key aides were on trial, rather than Duffy, who, when it came to claim- ing expenses, was like a kid in a candy store, clamouring for all he could grab. The trial threw Harper off his campaign messaging, had his supporters riled at the media, and led to countless hours of media navel-gazing. Politics and judicial appointments A

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