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Irwin Cotler, MP



A transparent excuse for a lack of transparency

Posted on December 5, 2014

(As published in The Toronto Star)

Last week, after the government filled a second consecutive Supreme Court vacancy using a closed, unaccountable approach, I rose in the House of Commons and asked what the Justice Minister would do to restore the transparency, inclusiveness and accountability of the Supreme Court appointments process.

In response, Bob Dechert, the Parliamentary Secretary to the Minister of Justice, referred to a May newspaper report apparently revealing the shortlist of candidates from the process that led to last year’s failed appointment of Justice Marc Nadon. Mr. Dechert called the report a “serious breach of confidentiality” and used it to justify keeping Parliament and the public out of the loop for subsequent appointments. He even quoted me as saying, when I was Justice Minister, that “a high degree of confidentiality is required for the process to function properly,” implying that I should endorse the government’s secretive appointments process.

Confidentiality is indeed important. However, there is a critical difference between a process that includes a protocol for ensuring the confidentiality of deliberations – as is the norm in all appointment processes – and one that is closed and clandestine in every respect.

For example, in 2004, I implemented the recommendations of the House of Commons Justice Committee, putting in place an appointments process that included both a strict confidentiality protocol, and a series of measures that otherwise ensured openness and accountability.

Evaluation criteria were announced publicly at the outset; a protocol was published setting forth the people to be consulted; MPs, distinguished representatives of the legal community and eminent public persons were included on an advisory selection panel; and I took questions from an ad hoc parliamentary committee prior to the confirmation of the appointments, notably about the nature of the consultation process and the way in which the evaluation criteria were satisfied by the nominees.

Moreover, the public was invited to participate, the advisory panel was empowered to carry out independent consultations, and the ad hoc committee made public recommendations for further improvement.

The confidentiality of deliberations themselves was protected, but Canadians were otherwise aware of how and why the appointees were chosen, and the involvement of parliamentarians – as well as that of many other groups and individuals – was welcome and well-known.

At the time, the Conservatives – including current Justice Minister Peter MacKay – issued a dissenting report calling for the ratification of the appointment by Parliament, an American-style requirement which the Justice Committee and I deemed inappropriate. However, since taking office in 2006, they have eschewed authentic transparency in favour of cosmetic measures, and they now eschew even those, having apparently come to believe that confidentiality of deliberations is incompatible with transparency of any kind.

The truth of the matter is that if we were to take every real or ostensible breach of confidentiality – or each instance of journalistic speculation of the kind that accompanies every Supreme Court vacancy – as a reason to dismantle the entire process, we might never have any process at all. Regrettably, this appears to be precisely what the Conservatives have in mind.

If the government were genuinely interested in refining the appointments process to better protect against leaks, it would have already done so in the seven months since the newspaper report in question. If the government were genuinely engaged in a “reconsideration” of the appointments process, as it claims, then that reconsideration would have generated some demonstrable paperwork or expense – not to mention a result – but the minister insists that the exercise has not given rise to any “documents, memos, briefing notes, or other materials,” and that “no cost has been identified” with it. And if the government harboured a genuine belief that some measure of openness is good for the Court and for the public’s confidence in it, it would, at the very least, not have done away with the ad hoc committee of MPs that meets with the nominee in public and only after he or she has been nominated, thus posing no risk to confidentiality whatsoever.

All this to say that the government still has not answered my question: What will the Justice Minister do to restore the transparency, inclusiveness, and accountability of the Supreme Court appointments process?

Irwin Cotler is the Liberal MP for Mount Royal, former Minister of Justice and Attorney General of Canada, and emeritus professor of law at McGill University.

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