Windsor, Ont. criminal lawyer and MP Joe Comartin represents the NDP on the “Supreme Court Selection Panel” and was reappointed his party’s justice critic May 26.  [Photo by Roy Grogan for The Lawyers Weekly] Click here to see full sized version. Comments? Please contact us at comments@lawyersweekly.ca. Please include your name, your law firm or company name and address.

The criminal lawyer who will help create a shortlist of six Supreme Court of Canada candidates for the court’s two impending Ontario vacancies says he will speak out publicly if he can’t, in good conscience, endorse some of the names eventually put forward to the prime minister by the Conservative-dominated “Supreme Court Selection Panel.”

Windsor-Tecumseh NDP MP Joe Comartin told The Lawyers Weekly that he hopes, and expects, that the ad hoc five-MP vetting committee, on which he represents the NDP, will collaborate across party lines to choose by consensus an unranked shortlist of three jurists for each vacancy. Prime Minister Stephen Harper has pledged to appoint the replacements for Justices Ian Binnie and Louise Charron from that list.

“I do expect that it will be unanimous recommendations,” said Comartin, who noted he doesn’t anticipate that the three as-yet unnamed Conservative MPs on the selection panel will allow partisanship, or their party’s “tough-on-crime” political ideology, to trump merit in their selection of jurists.

“But if it did, I think I’d have to dissent —I would say ’there are people on this list that I simply can’t endorse’ ” stipulated the NDP’s longtime justice critic, who is respected by fellow MPs for his legal knowledge and track-record of co-operating across party lines.

At press time Comartin was the only announced name on the vetting committee, which also comprises one Liberal and three Conservatives.

He will be the committee’s institutional memory, having previously participated in the pre-appointment screening of Liberal-appointed Supreme Court Justices Rosalie Abella and Louise Charron, and Conservative-appointed Justices Marshall Rothstein and Thomas Cromwell.

Comartin said the main quality the NDP is looking for is “merit…Somebody who is knowledgeable in the law and who can work cooperatively with the other justices. Part of the knowledge of the law is we look at the academic [experience], and practical experience if they did practise law, and if they are currently on the Bench, we would look at their decisions.”

The NDP also seeks “gender balance” and prefers bilingual candidates. “I am expecting all of the candidates from Ontario to be fluently bilingual,” Comartin said.

As well, he said his party strongly believes that there are aboriginal jurists in Ontario who are qualified to be appointed to the Supreme Court.

Therefore if the list of pre-screened candidates presented to the selection panel by Justice Minister Rob Nicholson fails to include prominent aboriginal jurists, “I will have to be having some discussions with Jack [Layton] as to whether in fact we should participate” in the selection panel, Comartin warned.

“There’s at least two [aboriginal jurists] from Ontario that I can see should be considered,” he explained, although he declined to name names. “That’s going to be a real problem if they are not at least on the [justice minister’s] list. Whether they survive to the final end is another story, I suppose, with this government. But there has to be at least one aboriginal on that list.”

Comartin noted the court would also benefit from the appointment of someone with substantial criminal law expertise to replace Justice Charron (especially since the court’s other criminal law expert, Justice Morris Fish, will be retiring in the next few years).

Comartin said he is prepared to make appropriate compromises on the ideal qualities he seeks — and he expects the majority Conservatives to do likewise. By way of example he cited the appointment of Justice Rothstein, who unlike the other candidates shortlisted for the post at the time, was not bilingual (an NDP priority).

Yet Justice Rothstein’s overall merit as an outstanding jurist “was head and shoulders over [the others] in the particular area [of the law] that we wanted at that time,” Comartin recalled. “We knew we needed someone from the commercial law area, and given his background…the other candidates were clearly not at the standard that he had achieved. So somebody like that…of his stature, was of such prominence you simply couldn’t say ‘no.’ ”

Comartin said he expects the Justice Department will consult widely and pre-screen about 20 or 25 names. Eventually the department will supply the selection panel with 10 or 12 candidates that the government deems “qualified.”

“My understanding at this point is that they will not entertain any names coming from the members of [our] committee,” said Comartin. “That was certainly the [case] both in the Rothstein and Cromwell [vetting process]. It was quite clear that we were only to consider the names that were put forward by the Attorney [General].”

Comartin said he believes it remains “doable” that if the selection panel is set up soon, it can have its shortlist ready for the prime minister by the end of August, thus allowing the prime minister’s two nominees to answer MPs’ questions before an ad hoc Parliamentary committee in September.

At press time the government refused to elaborate on the process it announced May 13. “Parliament is scheduled to resume on June 2nd. Further details will be announced in due course,” Department of Justice spokesperson Christian Girouard told The Lawyers Weekly.

The Canadian Bar Association told The Lawyers Weekly it seeks the “highest calibre” jurists to be appointed to the Supreme Court “based solely on merit,” defined as: experience in the law, intellectual and judgmental ability, high moral character, human qualities of sympathy, generosity, charity, and patience, good health, good work habits, and bilingualism if required by the nature of the post.

“Bilingualism is an important aspect of merit in selecting candidates for appointment to the Supreme Court,” CBA president Rod Snow said. “The CBA stresses the importance of the principle of institutional bilingualism and the right of litigants to be heard by judges who can understand them in the official language of their choice. A Supreme Court of Canada composed of judges who understand both official languages is an ultimate ideal; however inability to understand both languages at the time of appointment should not be a bar to appointment.”

Snow also said the CBA wants all governments “to reflect better the recognition of indigenous legal systems” in their judicial appointments.

Criminal Lawyers’ Association (CLA) president Paul Burstein told The Lawyers Weekly his group is concerned that, unlike the process for the appointment of provincial court judges in Ontario, the process for appointment to the Supreme Court and other federal Benches is neither transparent nor guaranteed to be free from partisan considerations.

“The final decision shouldn’t be dependent upon whether or not the politics of the candidate align with those of the attorney general or the prime minister,” Burstein observed. “It should be that they are the most qualified candidate.”

He said the CLA would like to see the government focus on “someone who respects the Charter, and sees it as what it is, which is the supreme law of our country that serves as a check and balance on the authority of the government to legislate — which seems to be counter to the Conservative approach to the Charter, so that’s of concern. Secondly, we are obviously interested in someone who has some…real world experience in how the law, especially the criminal law, can affect people’s lives…on the ground.”

The federal government will consult with Ontario Attorney General Chris Bentley on the appointments. In addition to considering Justice Minister Nicholson’s input, Prime Minister Harper is likely to be influenced by the opinions of Ontario Chief Justice Warren Winkler and Finance Minister Jim Flaherty — who is the political minister for Ontario and a seasoned lawyer who was once Ontario’s attorney general.

The Ontario Court of Appeal is talent-rich. Bilingual candidates from that court, who are frequently mentioned, include: Justice Andromache Karakatsanis, who was appointed to the Superior Court by the Liberals, but previously served as Flaherty’s deputy attorney general and later as the province’s top civil servant under the Harris Conservatives; Justice James MacPherson, a former Osgoode Hall law dean and ex-executive legal officer of the Supreme Court; and Justice Robert Sharpe, former law dean of the University of Toronto and also an ex-Supreme Court executive legal officer.

Judges with strong criminal law expertise include Justices David Doherty, Marc Rosenberg, Michael Moldaver and David Watt. Justices Eleanore Cronk, Harry LaForme, and John Laskin are said to be among the other strong contenders.

The government may also opt to appoint someone straight from the civil or criminal Bar, with such names circulating as Alan Lenczner and Benjamin Zarnett.