Supreme Court Appointment -- Leaks

I'm not sure the impact is quite as serious as this article suggests but leaks like this are unfortunate. Certainly it does appear the vetting process may be problematic.

The Globe and Mail
Wed 10 Sep 2008
Page: A10
Section: National News
Byline: Kirk Makin
Dateline: JUSTICE REPORTER
JUSTICE REPORTER -- The federal government has permanently damaged its Supreme Court of Canada nomination process by appearing to leak confidential information about judicial candidates to a cabinet minister, Newfoundland Justice Minister Jerome Kennedy said yesterday.
Mr. Kennedy was sharply critical of Fisheries Minister Loyola Hearn for stating publicly that two Newfoundland judges turned down invitations to fill a Supreme Court vacancy.

Under a vetting procedure created over the past few years by successive federal governments, the identities of judges considered for Supreme Court vacancies are strictly confidential.

"Based on Hearn's comments, I have to tell you that I'm flabbergasted at the involvement of a minister in a situation that should be confidential," Mr. Kennedy said in an interview yesterday.

"The integrity of the whole process has been called into question and, at a minimum, the process is flawed."
In an e-mail statement last night, Mr. Hearn said that he learned through "contact with the legal community" during the summer that some potential candidates did not intend to be considered for the Supreme Court vacancy.

"The formal application process for the position was later announced," the statement said. "Minister Hearn had no involvement in that process, and had no knowledge of the applicants."

The statement criticized Mr. Kennedy for publicly naming two senior Newfoundland judges who he had put forward as candidates in a recent letter to federal Justice Minister Rob Nicholson.
(Mr. Kennedy responded that the names were selected in consultation with the chief justices of the province's two highest courts. He said that the two judges were willing to be considered, and that mentioning their names was a compliment to them.)

Last Friday, in a surprising move, Prime Minister Stephen Harper circumvented an all-party committee his government set up to vet a short list of candidates by simply naming a nominee: Mr. Justice Thomas Cromwell of the Nova Scotia Court of Appeal.

Over the weekend, Mr. Hearn attempted to quell anger in his home province by saying: "Why didn't Newfoundland get the Supreme Court judge? Because at least two of the top people didn't want it."
Mr. Kennedy alleged yesterday that, besides using leaked information for political gain, Mr. Hearn's statement suggested that entire vetting process has been a sham.

If the government was secretly offering the judgeship to preferred candidates, Mr. Kennedy said, it renders the vetting process meaningless.

"If the PM can usurp a process as serious as the appointment of a Supreme Court of Canada justice, how can we trust him when it comes to any processes he puts into place or promises that he gives us?" Mr. Kennedy asked.

The vetting committee was scheduled to interview judicial candidates privately in the Atlantic region this week. It would have submitted a list of three candidates to Mr. Harper within a week or two, NDP justice critic Joe Comartin, his party's representative on the all-party vetting committee, said yesterday.

Mr. Comartin said that besides being false, Mr. Hearn's statement is very troubling because, "he should not have had any of that kind of information."
Whatever the case, it could be much harder to guarantee confidentiality in future, Mr. Comartin said. "I have to wonder how seriously the members of that committee will treat the confidentiality document we signed," he said. "Up to this point, we all felt very much obliged to protect, to the utmost, the identity of all the names on the list."

Mr. Kennedy predicted that Newfoundlanders will punish Mr. Harper on election day for playing fast and loose with the nomination process.

"What's gone on here is that Stephen Harper has shown himself to be heavy- handed, arrogant and oppressive in his dealings with anyone who dares to stand up to him," Mr. Kennedy said. "The message we will send to PM Harper on election day is we will not be intimidated by anyone."

James Morton
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