Naming process draws fire
Charron, Abella picked for skills in public, private law

Aug. 25, 2004. 06:29 AM


OTTAWA - Justice Minister Irwin Cotler has nominated to the Supreme Court of Canada two women from Ontario's appeal court who have backed same-sex rights, bringing the female bench strength on the top court to an all-time high of four.


Appeal court judges Louise Charron, 53, an Ontario francophone and criminal law expert, and Rosalie Abella, 58, a rights and equality advocate whose Jewish parents survived the Holocaust, were chosen for their skill in "all areas of public and private law," not because of their gender or past judgments upholding same-sex rights, Cotler said yesterday.


"The one criterion that I had in mind was merit," Cotler told reporters. "These two outstanding nominees happen to be women. They were not chosen because they are women; they were chosen because they are outstanding."


Today, the justice minister will explain his choices at an unprecedented televised hearing before an ad hoc all-party parliamentary committee that will include two outsiders from the legal and judicial community. They are Julian Porter of the Law Society of Upper Canada, and Federal Court of Appeal Chief Justice John Richard, representing the Canadian Judicial Council.


Cotler hotly denied Charron and Abella's past support for same-sex rights in any way influenced their selection for the country's top court, which in six weeks will tackle the federal Liberals' controversial bill to legalize civil marriage for same-sex couples.


To "reduce" their nominations to that "would be really prejudicial to the integrity of the judges and the independence of the judiciary," Cotler said at a news conference.


Both women wrote majority rulings at the Ontario appeal court extending spousal rights or benefits to same-sex partners. In 1996, Charron wrote in M. v. H. that same-sex partners could seek alimony payments, and Abella, in 1998 extended Income Tax Act pension protection to surviving same-sex partners.


This morning, committee members, including four opposition MPs who are all lawyers, will be able to grill the justice minister on questions that are restricted to the professional and personal characteristics of his nominees a process that is being keenly watched by current judges at the Supreme Court of Canada, sources said.


Although opposition members negotiated and agreed to the committee's scope, all expressed dissatisfaction yesterday with a process that presented finalists for the job rather than a shortlist, does not allow face-to-face interviews with the nominees, and leaves the committee no real say over the nominations.


"Announcing the details and the nominees one day before the committee meets is inexcusable," said Conservative MP Vic Toews (Provencher), his party's justice critic.


At 9 a.m., justice department officials delivered sealed envelopes containing the names of the candidates and brief biographies to MPs' offices yesterday, two hours before Cotler announced them publicly. MPs received background briefings on the nominees in the afternoon.


"There's nothing here. I expected an inch or two of paper so I could get some background," said New Democrat MP Joe Comartin (Windsor-Tecumseh).


"I know both of these people are viable Supreme Court of Canada judges," said Comartin. But, he added, "it's not the process that allowed me to make the assessment, it's my personal knowledge of them from my years of practising law in Ontario."


The final decision still remains with Prime Minister Paul Martin, and Cotler said anything else would have required an amendment to the Constitution, which entrusts the prime minister with the power to make Supreme Court appointments. He said Canadians should not expect parliamentarians would have final say over the appointments. "That's the U.S. constitution, that's not the Canadian Constitution."


Cotler defended the decision to shield the nominees from appearing in person before the committee, admitting Charron and Abella were never asked how they would feel about appearing to speak for themselves.


"They had no role in this," Cotler said, an admission Toews said was "astounding" and showed how weak the Martin government's commitment to greater public scrutiny really is.


But Cotler said the idea of more parliamentary review of judicial nominations is not to explore whether the judges hold opinions on controversial or "ideologically concerned" subjects, but to show Canadians they are highly qualified to do the job of judging.


Forgoing a public grilling of the judges themselves avoids the "prejudicial spectacle of potential justices being cross-examined on personal matters as we have seen in other jurisdictions," he added.


"This process is a farce," said deputy Conservative leader Peter MacKay. "This is a done deal. The draft pick has been made."


The Conservatives said yesterday their main complaint was with the lack of time for any real study of the candidates, and with the failure of the federal government to allow the nominees to speak in person to the committee.


"Parliamentarians do not want an invasive inquisition of nominees," said Toews, adding Conservatives are not demanding Parliament be given the final decision-making power.


The committee is expected to question Cotler for three hours today, then "deliberate" and give its "response" to the Prime Minister on Friday. It is expected Martin will formally make the appointments on Monday.


The committee is also asked to provide separate advice for a more permanent review process at a later date. That's because the committee is merely an interim panel that was struck quickly last week to give some life to Martin's longstanding promise to make the judicial nomination process more transparent and accountable.


Cotler said the government was caught off guard by the sudden resignations of justices Louise Arbour and Frank Iacobucci, announced last spring and which took effect in June.


Cotler insisted this is indeed a more transparent approach that will provide "greater openness and greater parliamentary input while at the same time protecting the independence of the judiciary and the integrity of the court."


Cotler said the two judges were his first two choices among a deep judicial talent pool on the Ontario Court of Appeal.