Tuesday, August 14, 2012

Nicholson on a Toews appointment

Justice Minister Rob Nicholson was attending the Canadian Bar Association meeting yesterday in Vancouver and he was asked a hot button question given rumours about Public Safety Minister Vic Toews possibly retiring for a judicial appointment. This Globe headline captures Nicholson's non-answer: "Politicians should not be ruled out for judicial appointments: Justice Minister." He answered the question generally, without specific reference to Toews.

I agree that as a general principle politicians should not be ruled out for judicial appointments. See Roy McMurtry in Ontario, for example. You would find very few people who would be critical of McMurtry's tenure as a judge. I doubt there were any objectors at the time to his appointment. And notably, he was appointed to the bench six years after his retirement from active politics.

This is a new era for Conservative politicians in Canada though. Toews is no McMurtry. Toews, representing this federal government's law and order agenda, would be much more difficult to see on the bench as a fair adjudicator. Imagine yourself as a criminal defendant appearing before him and ask yourself if you'd be confident you'd get a fair trial. Or, ask yourself whether you'd feel confident that Toews was competent to be a decent judge. Serious questions.

The former reason, the appearance of a lack of impartiality in particular would likely mean he's not going to be on anyone's list for an appointment any time soon or at all.

It's good to see the CBA pressing Nicholson on it though. Serves as a warning to the powers that be that such an appointment would not be well-received by a very vocal and politically active community. Jumping from Toews' very partisan positioning to an immediate spot on the bench would bring the system into disrepute. It wouldn't be helpful to the notion of an impartial judiciary in Canada.