November 24, 2014 3:28 pm
Updated: November 24, 2014 6:18 pm

‘No date set’ for replacing retiring Supreme Court judge – next week

A statue outside of the Supreme Court of Canada. THE CANADIAN PRESS/Adrian Wyld


OTTAWA – The Conservative government hasn’t yet set a deadline for replacing the next Supreme Court judge from Quebec – and the vacancy is less than a week away.

Justice Louis LeBel is set to retire from the country’s top court on Nov. 30. Although LeBel announced his retirement on May 23, “no date has been set” for his replacement, according to documents tabled in Parliament on Friday.

“The government intends to fill the seat promptly,” says a note from the department of justice, in response to a question from Liberal MP Irwin Cotler.

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READ MORE: Peter MacKay’s department says it’s ok for Chief Justices to comment on Supreme Court appointments

The document, signed by Justice Minister Peter MacKay, says the government is consulting with “a wide variety of groups and individuals” on the next appointee – but does not name them.

“As with previous appointments, the government will consult with individuals, agencies, organizations or other governments as it deems appropriate and helpful,” it says.

Following the botched appointment of Justice Marc Nadon, the government decided to review the way judges are sent to the high court – and that meant scrapping the involvement of opposition parties on a selection panel.

READ MORE: EXCLUSIVE: Justice Marc Nadon speaks ‘At least this has certainly ended the uncertainty’

“It is a result of a breach in confidentiality in the appointment process,” the document says.

The department says the review of the Supreme Court nomination process is “ongoing.” But there is no record of it.

“No documents, memos, briefing notes or other materials have been created,” it says.

The government also says “no cost has been identified” with reviewing the nomination process.

As for how the next judge will be chosen, the department says professional capacity, personal characteristics and diversity are all taken into consideration.

It is the same criteria used to appoint the past three judges, including Nadon, whose appointment was ultimately rejected by the Supreme Court itself.

In an interview, Cotler said when he was justice minister 10 years ago, the government published the list of who was consulted as well as the criteria used to evaluate merit. The minister also appeared before a parliamentary committee to explain the appointments.

“There appears to be no appointment process in place. It is being done… in secret,” he said.

Cotler said he hopes the court doesn’t go for a year without a Quebec judge, as it did after Nadon’s appointment was rejected. He was eventually replaced by Justice Clement Gascon in June.

“(The government) knew about Justice LeBel’s retirement more than six months ago. There was no need to wait to the point where he actually retires and beyond in order to make the appointment and have the vacancy yet again on the court,” Cotler said.

Watch: Peter MacKay addresses Supreme Court appointments

In question period Monday, MacKay said his government put into place the “most-inclusive, most-consultative process that we have ever seen in the history of Canada when it comes to Supreme Court judges.”

As for LeBel’s appointment, MacKay said: “We will be consulting broadly with prominent members of the bar association, the judiciary, of course, the elected members of the government of Quebec.”

He also suggested that Cotler, a lawyer and member of the Quebec bar, could be appointed when he leaves politics next year.

“I note the honourable member is recently making plans to leave this place. We might even consider him,” MacKay said.

But the 74-year-old Cotler said that isn’t a possibility, even if the government calls an early election before he turns 75 next May.

“There’s no way I could meet the criteria even with an early election, if they’re going to have a proper appointment process,” he said.

“And I wouldn’t do it anyway.”


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