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Stephen Harper

Harper under gun for apppointment of SCOC head

Stephen Harper 28%

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montrealgazette.com January 5, 2009


By Janice Tibbetts, Canwest News Service


OTTAWA — As Thomas Cromwell was quietly sworn in Monday as the newest judge on the Supreme Court of Canada, critics accused Stephen Harper of playing fast and loose with the appointment process by abandoning his own promise to make the system more public.

Two legal scholars lambasted the prime minister for walking away from plans to include MPs in selecting the newest member of the high court and to hold a public hearing to give Canadians a glimpse of Cromwell before he was elevated to one of the most influential judicial posts in the country.

"It was a step toward an improved process and it was dreadful to abandon it," charged veteran court analyst Peter Russell, a retired University of Toronto professor.

"I think Stephen Harper may just have lost patience," added Philip Slayton, former law dean at University of Western Ontario.

"At the end of the day, he just said 'this is my choice, this is the person I choose, and that's the end of it'."

Harper, in a bid to bring more transparency to an appointment process that his party has maligned for taking place behind closed doors, decided after coming to power in January 2006 to hold a televised public hearing to allow MPs from all parties to screen Supreme Court contender Marshall Rothstein before the prime minister completed his appointment.

When Justice Michel Bastarache announced his retirement last spring, Harper promised to do the same thing this time around. He also said he would include MPs in the selection process by allowing an all-party House of Commons committee to vet a list of contenders and devise a short list of three.

The committee, however, became bogged down in political squabbling last summer and Harper decided to cut short its work on the eve of the federal election call in September by naming Cromwell without parliamentary input.

At the time, Harper postponed Cromwell's ascent until after the election, when he planned to convene a public hearing so that MPs could screen the contender, although the final call would remain with the prime minister. The delay meant that the court, which normally has nine judges, sat at reduced strength for its entire fall term while Cromwell waited in judicial limbo.

The hearing had still not taken place when Parliament was suspended in early December. Three days before Christmas, Harper announced there was no time left for parliamentarians to "scrutinize" his choice, but that he would reinstate the public process next time around.

Slayton said that Harper was wrong to pick practicality over principle by deciding there was not enough time to stick with his promise.

While Slayton dismissed the public hearing as cosmetic, he said it is better than nothing and that the Supreme Court could have endured a couple of more weeks at reduced strength by sitting without its new judge when the session begins Jan. 12.

Parliament does not convene until late this month so a hearing would not have taken place until at least early February.

"The process such as it is should have been respected and not bypassed," Slayton said. "If you're looking at the trade-off, it would have been better to wait until Parliament convened and then to have a quick parliamentary hearing."

Russell blamed the prime minister, saying that he dragged his heels for months after Bastarache announced his departure.

"It's a total lack of respect for the court," said Russell, who accused the Conservatives of neglecting the institution.

By all accounts, Cromwell, an 11-year veteran of the Nova Scotia Court of Appeal, is considered a stellar choice to sit on the nine-member bench and he was widely touted as the front-runner before Harper nominated him in September.

By convention, Harper made its selection from a roster of Atlantic Canadian contenders to succeed Bastarache, a New Brunswick francophone.

Before finalizing the appointment in December, Harper consulted with Michael Ignatieff and the new Liberal leader said at the time that he would not. stand in the way of a "superb appointment," particularly when the final decision was Harper's to make anyway.
© Copyright (c) Canwest News Service


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