Stephen Harpers and His reforms Regarding Section 96 and Supreme Judges Appointments - Essay Example

Stephen Harper’s and His reforms Regarding Section 96 and Supreme Judges Appointments Stephen Harper’s and Hisreforms Regarding Section 96 and Supreme Judges Appointments Steven Harper, he Canadian prime minister and his conservative party came to power after the 2006 federal elections. As the party leader, Stephen Harper had the honours to aspire with the party ticket as the prime minister. The conservative campaign approach increased Harper’s public opinion ratings over his rivals due to the promises the party held. The party won the elections through with minority members in the house. Conservative party’s promises to the mass, though not fully fulfilled ensured the party won elections for the second time in 2008. Among the promising aspects that gave Stephen Harper’s conservative party an edge over their rivals refers to the democratic appointment processes for section 96 and Supreme Court judges1. The researcher therefore examines to what extent the conservative government have effected these changes. Consequently, the paper cross-examines the most significant change and a judgement provided regarding beneficial aspects of those reforms. The judiciary in Canada holds the role of serving as an impartial arbiter. There stands a legal requirement for the judicial system to maintain independence to enhance quality justice among the Canadians. Although the judiciary is termed as equal to the legislature and executive arms of government, appointment, removal, as well as remuneration of judges, relies upon other branches. The role of office of the Supreme Court, as well as the federal court judges, falls under section 96 of the Constitution Act. The section is at times called section 96 judges. The judges sit in the provincial Supreme Court and court of appeal or in other equivalent courts. Provincial and municipal governments appoint provincial lower court judges among others2. The provincially appointed judges’ deals with matters related to provincial legislation and federal legislation. The constitution act, as well as the federal judges act, explains the basis of removal of magistrates, retirement and remuneration. Such provisions follow in various provincial enactments although some may vary from province to province. Steven Harper and his conservative party have brought a lot of changes to the appointment processes that have by far changed the initial process. The judicial system has for long experienced many excellent appointments in both the provincial as well as territorial superior courts. The Canadian courts for long have gained respect locally and internationally. The house of commons provides a Standing Committee that oversees the justice and human rights that make less interference relating to the ways the Canadian courts maintain independence. The current changes, however, bring new measures relating to the making of the judicial advisory committees that hold responsibility for helping to choose judges and also deliberating on the best methods used to select judges. In the view of most of the board members, a lot of problems stemming from these changes remain notable. A major difficulty relates to the undue preference accorded to the law enforcement community whereas the vast majority of cases in Canada presented in the Canadian superior courts fail to involve the police3. Another difficulty relates to the fact that an actor of the criminal judicial system, one whose actions keeps being scrutinised by the selected judges fails to have, or perceived to have any role regarding the choice of an arbiter. Lastly, another difficulty with the changes in place refers to the elimination of highly recommended aspects thereby giving room to the justice minister to a greater scope to select judges whom at times take a partisan choice. The new changes prompt an examination by the committee of federal judicial nominations process and consequently reducing the public confidence in the conservative government. A focus on exact legal background to the federal judicial appointments and the laws governing the elections before the changes proves essential in developing an understanding of the detrimental effects of these changes. The Governor-General holds the power to appoint judges under Section 96 of the Constitution Act, 1867. These powers amount to appointments of the Superior, District as well as all county courts in all provinces. Section 101 of the Constitution Act, 1867 allows the Canadian parliament to provide for the development of any required additional courts to enhance better administration in Canada. Under the powers of section 101, creation of the federal court occurred in 1971 to serve as a replacement of the exchequer court of Canada that started operations in 18754. With changes to the federal courts Act that began operation in 2003, Canada currently holds two separate courts. These two courts are the federal appeal court as well as the federal court. Further amendments to the Tax Court of Canada Act in the year 2003 allow the court to hold a superior court status record. Through section 99(1), the Constitution Act 1971, under section 8 the Tax court judges appointed by the parliament stays in office through portraying good behaviour but their removal from office occurs through the Governor General after an address to both house of commons and that of senate. The federally appointed judges remain in office until they attain retirement age of seventy-five years. The Governor General lacks power to influence their removal from office. The Judges Act provides for their salaries, pensions and allowances. The Governor General makes Federal appointments while acting on an advice of the cabinet. The cabinet minister of justice makes recommendation of appointment of puisne judges as well through the prime minister in accordance to the appointments of al chief justices as well as associate chief justices5. The advice to cabinet occurs amongst the names previously reported to the minister of justice by the judicial advisory committees. These appointments fail to include the nomination activities of the Supreme Court of Canada as they fall under the role of the prime minister. The process includes Provincial Court Judge as well as lawyer candidates seeking for appointment. Adhering to professional competence as well as the overall merit remains the initial qualifications for individuals appointed to the bench. The current selection process took effect in 1989 after creation of the process by the advisory committee. The judicial advisory committees hold the obligation of overseeing the office qualifications for appointment of lawyers applying. A minimum of at least one committee runs a province. Ontario and Quebec provinces contain the largest number of representatives attributed by their large population with three and two respectively. Before the changes occurred each judicial advisory committee comprised of seven members who represented the bench, the bar as well as the public. The nominees stemmed from different regions as follows: first, provincial territory provided one nominee or territorial law society. The second candidate came from the Canadian Bar association with the third nominee being an appointee of the Chief Justice. The fourth candidate was appointed by the attorney general while the minister of justice appointed the three other nominees. In addition to these members, an ex-officio non-voting member was present in each committee. The justice minister appoints individuals to serve on every committee who aids in demonstrating appropriate factors to the jurisdiction that include geography, multiculturalism and gender. The Judges Act spells out the statutory qualifications for appointment and also contained in the federal courts Act as well as the Tax Court of Canada. The committees used to assess the candidates on the basis of recommended category, highly recommended category or unable to support. The groups serve as an advisory nature of the processes of the committees. On completion of the assessment process, notification is issued to the candidates regarding the evaluation date but without giving assessment results. The confidentiality of the results remains and only the justice minister uses them. The minister if required may seek further clarification from the applicant or the committees. The validity of the appointments last for two years. A considerable number of changes with quantifiable effect to the judicial system remain a primary focus for the majority of the Canadian citizens and other groups. These changes include first, change in the composition of the committees of Judicial Advisory. Initial judicial advisory committees comprised of seven members with the current changes increasing the number to eight that consists of the following: first nominee comes from the territorial or provincial law society6. The second candidate comes from the Canadian Bar Association of either the provincial or regional branch. The third candidate comes through the Chief Justice Appointment or appointment of the senior judge in a particular province or territory. The provincial Attorney General appoints the fourth candidate and the selection also occur through the territorial justice minister. The fifth candidate results from the law enforcement community with the three others from the justice minister of the federal government with a view to representing the general public7. An ex-officio member who abstains from voting also makes part of the committee. Comparing the revisited list of the board members and comparing it with the initial list, an additional one member remains notable. The other nominee comes from the law enforcement community an indication that the justice minister selects the additional candidate. A second change made relates to the assessment manner of candidates claiming for judicial offices. The previous recommendations required committees to interview the candidates based on three categories8. The initial groups comprised of highly recommended, recommended or unable to support categories for appointment. The current committees focus on only two types during interviews eliminating the highly recommended for office option. The third change refers to the judicial advisory committee’s chairpersons roles. Harper’s conservative government changed the role of the chairs of these committees as opposed to the initial chairs election where the board members appoint members from within their number. The nominations only lasted for the same duration of the committee’s mandate as well as the chairs engaging in the voting for candidates. Current changes allow the judicial appointees within the committees to act as chairs during the committee’s duration mandate. In addition to the change, the judges within the committees only take part in elections where a tie occurs and thus a need to break the tie. Under situations where relationships of votes fail to appear, the chairing judges abstain from voting9. The fourth change relates to staggering terms of committees. The new changes ensure the judicial advisory committee expiry date varies from other committee’s expiry dates. These changes make sure that the terms of the committees expire at different time. The process helps in maintaining a favoured continuity in the nomination process of the judicial courts. The last change refers to changes in the committee of the Tax Court of Canada. The creation of a committee to assess candidates who get appointment to the tax court remains a new change that to majority aims at controlling the court activities in a beneficial manner denying the court its constitutional freedom. All these changes adopted by the conservative government have been considered by majority as a means adopted by Harper and his government to control the freedom of the courts. The most considerable change relates to a change of judicial composition that remained the principal focus of altering the courts power. The Canadian conservative party remains intent on curtailing activist judge’s influence as evidence by Stephen Harper’s reaction during the Blue Book platform. His government sees the courts as liberal institutions they intend to use in order to remake their image. Through the justice ministry, the conservative government have achieved to a greater length control of the courts. The underlying assumptions of the conservative government behind these appointments relate to other judicial selection committee’s changes made in other years during the process of governing. Other changes occurred during the years 1991, 1994 as well as 1999. For example, in 1991 the three categories of grouping appointees as qualified, highly qualified and non-qualified replaced the two classes of not skilled and skilled. Consequently, during 1994, additional representatives to the committees of justice took place. The 1994 changes aimed at increasing non-lawyers representation within the judicial committees. The justification of the conservative government that the additional member from the law enforcement community to the advisory committees relates to the same as adding a member from the community raises questions about the freedom of the composition of the judicial advisory committees10. The government claims the additional member helps in broadening the basis of examination that potential candidates undergo during interviews as well as contributing to a fresh perspective among the Bench applicants. Consequently, the government has emphasized through the minister of justice that making the judicial nominee chair to the committee indicate employing significant oversight relating to the flow of discussions and managements of the assessments of candidates for interview. Considering that most candidates assessments result in voting as opposed to voting, the vote loss by the judicial nominee unless in the case of a tie fails to prove much significance. The government claims the importance of the new judicial candidate represents a role related much to the one held by the old system. Finally, the conservative government claims that the basis of categorizing a candidate as highly recommended remains irrelevant11. The government relates to the loss of significance of the category indicating that percentage rates of potential candidates are receiving the categorization varied significantly depending on the region of origin within the country. The government also shows great prevalence derived by lawyers from large firms as opposed to their counterparts from small firms as well as cities. Harper and the conservative government claims that the comment sheet the advisory committee’s member provides for every candidate possesses a great significance as opposed to categorization of individuals to “highly recommended”. In conclusion, the changes effected remain unfair for the Canadian community as Harper and his conservative government deprives them the freedom of the judiciary the constitution once granted them12. Works Cited Doern, G. Bruce. How Ottawa Spends, 2008-2008 the Harper Conservatives : Climate of Change. [28th ed. Montreal [Que.: Published for the School of Public Policy and Administration, Carleton University by McGill-Queens University Press, 2009. Flanagan, Thomas. Harpers Team behind the Scenes in the Conservative Rise to Power. 2nd ed. Montréal [Que.: McGill-Queens University Press, 2009.13 James, Robinson. "JUST (39-1) — Fourteen Report: PRESERVING INDEPENDENCE IN THE JUDICIAL APPOINTMENT SYSTEM — Standing Committee on Justice and Human Rights." JUST (39-1) — Fourteen Report: PRESERVING INDEPENDENCE IN THE JUDICIAL APPOINTMENT SYSTEM — Standing Committee on Justice and Human Rights. June 15, 2014. Accessed December 9, 2014. http://www.parl.gc.ca/Content/HOC/Committee/391/JUST/Reports/RP2970953/391_JUST_Rpt14/391_JUST_Rpt14_Pg01-e.html. Johnson, William. Stephen Harper and the Future of Canada. Toronto: McClelland & Stewart, 2010. Mackey, Lloyd. The Pilgrimage of Stephen Harper. Toronto [Ont.: ECW Press, 2010. Mackey, Lloyd. Stephen Harper the Case for Collaborative Governance. Toronto, Ont.: ECW Press, 2009. Plamondon, Bob. Full Circle: Death and Resurrection in Canadian Conservative Politics. Toronto: Key Porter Books, 2012. Read More