Political patronage 'a huge problem' in appointing judges former premier: 'More accountability, objective vetting' needed; inquiry into process long overdue, Peckford says

By Cristin Schmitz
Sep 26, 2005

A parliamentary inquiry this fall into what role political patronage plays in dispensing plum federal judgeships is long overdue, suggests Brian Peckford, citing ferocious "ego-led" jockeying for the prestigious $224,200 posts that makes election campaigns seem mild by comparison.

The former premier of Newfoundland and Labrador said he supports the mandate of a special Commons subcommittee that next week begins delving into what the opposition suspects is rampant partisanship in the appointment of federal judges below the level of the Supreme Court of Canada.

"There is a huge problem," Mr. Peckford said in a telephone interview from his home in Qualicum Beach, B.C. "I saw it first-hand when I was in government," recalled the Conservative whose decade in power from 1979 to 1989 overlapped the federal Liberal and Conservative regimes of Pierre Trudeau, Joe Clark and Brian Mulroney.

"It makes no difference what party," insisted Mr. Peckford. "The long and short of it is that within the judicial system below the Supreme Court of Canada there is constant jockeying for position by those in the lower judiciary, as well as prominent lawyers, in trying to gain favour and to gain acceptance by those who will ultimately have the power to appoint.

"The amount of cajoling and outright political campaigning that goes on behind closed doors by the parties who are interested in getting themselves elevated to the bench is unbelievable, and the various subtle ways in which these individuals with big egos want to climax their careers on the bench is amazing."

Mr. Peckford scoffed at Justice Minister Irwin Cotler's assurances that a lawyer's Liberal ties are immaterial in the quest to join the elite 1,000 who make up the superior and appellate courts across Canada.

"Nothing is pristine pure," Mr. Peckford observed. "Everybody knows, if they are being quite truthful about it, that there is activity that takes place on behalf of various individuals and their ability to become a judge. I have no inside knowledge (now) but in just reading and paying attention to what is going on I cannot accept what Mr. Cotler says as being 100-per-cent valid."

Because political patronage on the bench is such a delicate matter, Mr. Peckford declined to name names.

"All I can say is that I was aware of lobbying efforts being undertaken for certain individuals," he said.

But an analysis this spring by CanWest News Service revealed that at least 60 per cent of the lawyers appointed since 2000 to the federal benches of Quebec, Ontario, Alberta, Saskatchewan and the Federal Court by the Chretien and Martin governments had donated exclusively to the Liberal Party of Canada in the three years before their appointments. Just a handful of those appointed donated solely to one of the other parties.

Critics suggest that the federal cabinet's near-unfettered discretion to pick judges, combined with the quid pro quo of politics, makes political patronage in the way judgeships are doled out virtually inevitable.

But Mr. Peckford argues patronage should no longer be tolerated given judges' vastly expanded social policy-making powers under the Charter.

"There is no question that there needs to be some more accountability, and some more objective vetting of candidates for the judiciary, and take it completely out of the political realm," he urged. "The present system is not proper and accountable and there has to be some steps made towards greater accountability and greater scrutiny so the public feels comfortable in their judicial system and that's not true now."

Reforms by the Conservatives in 1989 saw the creation of low-profile advisory committees in each province that secretly rate applicants for the federal bench as "recommended," "highly recommended" or "unable to recommend."

But the Canadian Bar Association and other critics say the present process doesn't guarantee that the best candidates will be appointed or that partisan considerations are eliminated. Due to the large size of the pool of candidates that are approved by the advisory committees the Liberal government still retains considerable scope to favour lawyers of its own political stripe.

Mr. Peckford endorsed longstanding calls for the creation of ranked short lists of the best candidates by an independent committee, a process successfully used by provinces like Ontario to minimize patronage in the appointment of lower court judges.

The Commons subcommittee will hear from academics, legal organizations and others before making recommendations to Parliament by Dec. 15. Its study was triggered by the allegations sparked by the Gomery inquiry that at least five lawyers who campaigned in Quebec for the Liberals in 2000 later became federal judges.

Bloc Quebecois MP Richard Marceau, chairman of the Commons sub-committee and his party's justice critic, predicted the Liberals will pay at the polls if the Martin government ignores Parliament's non-binding recommendations for reforming the appointment process.

"For the Liberals to be seen as defending a process that leads to patronage appointments, or what could be perceived as patronage appointments sometimes, would not be good politically right before a federal election," he argued.