Profiles of candidates for top court kept secret
'Cabinet confidences' get in the way of vow to open up judicial appointment process

Janice Tibbetts
The Ottawa Citizen

Tuesday, April 27, 2004

The Justice Department is refusing to make public its secret profiles of candidates for coveted spots on the Supreme Court of Canada at a time when the Martin government is pledging more openness in the appointments system.

Justice Minister Irwin Cotler revealed recently that his department compiles "jurisprudential profiles" of judges -- their legal backgrounds -- to help him in his informal search for candidates to fill positions that are considered among the most important in the country.

But the Justice Department has rejected a request to release the documents under federal access-to-information laws, saying the profiles are protected "cabinet confidences."

Profiles of both past and present candidates were denied.

Mr. Cotler's office also refused to release the information informally, citing "privacy concerns."

The move doesn't sit well with Democracy Watch, a public interest lobby group that accuses federal officials of hiding behind cabinet confidentiality far too often when it comes to giving Canadians information about the inner workings of government.

"The government wants to control the agenda so much now that it doesn't even want the public to know what options it is considering, and that is excessive secrecy," said co-ordinator Duff Conacher.

The only cabinet information that should be protected from public access is business that takes place around the cabinet table -- and, even then, it should be up to Canada's information commission to make a final decision on whether the information should be denied, Mr. Conacher said.

The Liberal government's refusal to release information about judges being considered for Supreme Court postings confirms there is a political element to the appointments system, despite the government's insistence it is based only on merit, charged Conservative justice critic Vic Toews.

"If it's just a straight profile of a candidate, how can that be subject to a cabinet confidence because there's nothing confidential about that, it's all information in the public domain," he said.

"Why should that be subject to cabinet confidence unless they are saying this guy's or this woman's profile isn't liberal enough, or it's too conservative, or he or she is a separatist. It's the political analysis of that profile that they're worried about and it questions their whole assertion that these are not political appointments."

The secrecy around cabinet confidences has been widely maligned by public interest advocates, MPs, judges, lawyers and the federal information commission, who often goes to court to fight for the release of documents.

The Access to Information Act does not define cabinet confidences, which are exempted from public release for 20 years.

But a list of examples of cabinet confidences includes cabinet memoranda, agendas, records of decisions, communications between ministers on matters relating to making government decisions or formulating government policy, pre-cabinet briefings of ministers and draft legislation.
The Ottawa Citizen 2004