‘Appalled’ by Supreme Court leak

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This article was published 25/03/2019 (2106 days ago), so information in it may no longer be current.

OTTAWA — “Appalled” legal experts say Prime Minister Justin Trudeau needs to crack down on a leak that likely stemmed from his office surrounding one of Manitoba’s top judges, or risk undermining public confidence in the Supreme Court.

“I’m quite frankly appalled by the breach of confidentiality that’s occurred (and) by the fact that this respected man and sitting judge has had to share personal information about his wife’s health, in order to respond to what he has described as an agenda — that he has no part of,” said Emma Cunliffe, a University of British Columbia law professor.

Glenn Joyal, the Chief Justice of the Court of Queen’s Bench, said in a statement Monday he had applied for the Supreme Court posting, but withdrew, citing his wife’s health.

Emmett Macfarlane, a political science professor at the University of Waterloo, accused the PMO of “using the fact that somebody applied as a cudgel to try to denigrate Jody Wilson-Raybould.”

Macfarlane helped craft Trudeau’s appointment processes for Supreme Court justices and Canadian senators.

Since 2016, a panel has reviewed applications in which judges talk at length about their perspective and life experience. The entire process is confidential. The prime minister picks from a shortlist, and only the selected judge’s application is made public.

“It actually could have a chilling effect on the people who put forward applications,” he said of the leak, because people could withhold important information or simply not submit applications given the risk of Ottawa breaching their confidentiality.

“To allow a leak is quite frankly dangerous,” Macfarlane said, calling it “an attack on the integrity of” the appointment process that requires investigation.

CTV News and The Canadian Press reported Monday that Trudeau clashed with former attorney general Jody Wilson-Raybould over her preference for a Supreme Court nominee.

The reports cited unnamed sources, who claimed Wilson-Raybould preferred Joyal over Trudeau’s ultimately chosen judge; that she wrote a 60-page report to Trudeau in 2017 arguing Joyal be made head of the Supreme Court (an exceptional move for someone not already on the bench); and this caused Trudeau to doubt Wilson-Raybould’s judgment, before he removed her from the role.

The news sent reverberations through Canada’s legal community.

“In Canada, we’ve really avoided the politicization of the bench, and the judges on our courts are really strong,” said Karen Busby, a constitutional law professor at the University of Manitoba.

She was responding to what she called “an attempt to politicize” Joyal.

The Manitoba Bar Association said the incident was “highly disconcerting.” It also called out claims in the media that Joyal would reverse gay rights and abortion access as “entirely improper, and indeed false” insinuations.

Joyal was similarly unimpressed:  “I fear that someone is using my previous candidacy to the Supreme Court of Canada to further an agenda unrelated to the appointment process. This is wrong.”

While it’s unknown who leaked the fact Joyal had even applied, the information is widely believed to stem from the Prime Minister’s Office, given how confidential the process is, and the source was unflattering to Wilson-Raybould.

Trudeau gave reporters no indication he’d do anything about such concern. He also wouldn’t deny the leak came from his office.

“Canadians can know that we have a strong and independent judiciary. And as would be proper, I’m not going to comment any further on it,” Trudeau said Tuesday in Winnipeg. He repeated the same points two more times when asked about the situation.

That’s not good enough for the UBC’s Cunliffe, who said the leaks unfairly raise questions around the judge whom Trudeau ultimately appointed to the bench, Sheilah Martin.

“If there’s some suggestion that there was inappropriate interference in the process, then it’s a short step to questioning whether she was the best candidate,” Cunliffe said. “This is unprecedented, in my experience.”

She said the leak has to be investigated in order to avoid a similar situation.

The experts said this week’s leak brought to mind then-prime minister Stephen Harper’s May 2014 rift with now-retired chief justice Beverley McLachlin.

Harper had disclosed McLachlin reached out to his justice minister, over a concern he may try to appoint a judge who would not meet the legislated criteria to serve on the bench. He inferred she was meddling in the administration of justice.

“What happens in the United States now just reminds all Canadians of really how lucky we are, that we have a very strong, independent judiciary, and we don’t have a tradition of gratuitously criticizing the judiciary,” Busby said.

The Canadian Bar Association released a statement Tuesday saying naming applicants and commenting on their suitability “demeans the selection process and ultimately all those who hold the office.”

Joyal declined to comment Tuesday, as did Manitoba Justice Minister Cliff Cullen.

— with files from Jessica Botelho-Urbanski

dylan.robertson@freepress.mb.ca