Cablegate: No Time to Waste: Pm Harper Bypasses Parliament On Supreme

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PP RUEHGA RUEHHA RUEHMT RUEHQU RUEHVC
DE RUEHOT #1586/01 3581840
ZNR UUUUU ZZH
P 231840Z DEC 08
FM AMEMBASSY OTTAWA
TO RUEHC/SECSTATE WASHDC PRIORITY 8909
INFO RUCNCAN/ALL CANADIAN POSTS COLLECTIVE PRIORITY

UNCLAS SECTION 01 OF 02 OTTAWA 001586

SIPDIS

SENSITIVE

E.O. 12958: N/A
TAGS: PGOV CA
SUBJECT: NO TIME TO WASTE: PM HARPER BYPASSES PARLIAMENT ON SUPREME
COURT APPOINTMENT

REF: OTTAWA 1577

1. (SBU) Summary: On December 22, Prime Minister Stephen Harper
nominated Thomas Cromwell as a Supreme Court Justice, bypassing the
parliamentary scrutiny for Supreme Court appointments he had earlier
championed. Together with his near-simultaneous flip-flop over
appointing new senators against long-standing Conservative policy,
the PM's burst of pragmatism suggests he is a man in a hurry to put
his stamp on federal institutions, and may be unsure how long his
government will last. End summary.

REFORM MOMENTUM
---------------

2. (U) Under Canada's Constitution, the Governor General appoints
Supreme Court justices on the advice and recommendation of the Prime
Minister. The Prime Minister must consult Cabinet, but ultimately
has the final say on whom to recommend to the Governor General. By
convention, the Governor General has no discretion in making
appointments. The Constitution does not require any vote in, or
consultation with, Parliament or the provinces.

3. (SBU) In response to criticism, prime ministers have begun to
allow limited parliamentary participation. In 2004, Liberal then-PM
Paul Martin announced the establishment of an ad hoc all-party
parliamentary committee to review his choice of justices Rosalie
Abella and Louise Charron and to hear testimony from the Minister of
Justice concerning the two nominees. However, Conservative
then-opposition MPs (of whom Stephen Harper was the leader at the
time) denounced the changes as "insufficient," since the process did
not allow MPs to interview the nominees directly. In April 2005, PM
Martin further allowed an ad hoc advisory committee to review a list
of seven names and forward three names to him, from which he would
select a candidate to recommend to the Governor General.

4. (SBU) Two weeks after taking office in February 2006, PM Harper
provided for more direct access to court candidates. He accepted
Justice Marshall Rothstein as the Government's nominee for the
Supreme Court from a short-list of three names scrutinized by an
all-party ad hoc committee initiated under the previous Liberal
government. Furthermore, he also gave a newly constituted Ad Hoc
Committee To Review A Nominee For The Supreme Court of Canada the
opportunity to question Rothstein in a televised hearing on February
27, the first time in Canadian history that a Supreme Court nominee
faced questions from parliamentarians.

5. (SBU) PM Harper boasted that the hearing marked "an unprecedented
step towards the more open and accountable approach to nominations
that Canadians deserve." The committee nonetheless remained
advisory and did not have the power to block the appointment. The
PM still had the final choice of whom he would recommend to the
Governor General, leading some critics to dismiss the exercise as
meaningless. PM Harper described the hearing as an interim process
to deal with the pre-existing vacancy in a timely manner, and
promised to announce a new "formal mechanism" to govern future
vacancies at a later date.

TOO URGENT TO WAIT
-------------------

6. (SBU) In 2008, an all-party panel of MPs charged with narrowing
down a list of Supreme Court nominees to replace Justice Michel
Bastarache failed to agree on a short-list, after it got bogged down
in partisan politics in September. PM Harper announced on the eve
of the October 14 federal election his choice of Nova Scotia Court
of Appeal Justice Thomas Cromwell as his candidate. The fall
election campaign, and then the prorogation of Parliament in
December, delayed creation of an ad hoc parliamentary committee to
QDecember, delayed creation of an ad hoc parliamentary committee to
interview Justice Cromwell, however.

7. (U) On December 22, PM Harper recommended the appointment of
Cromwell to the Governor General, bypassing the Parliamentary
hearing process he had championed to scrutinize nominees. In a
statement, he cited the urgency of filling the eight-month vacancy
as the justification, noting that the Court must have its full
complement of nine judges "to execute its vital constitutional
mandate effectively." He added that the appointment would also
restore regional balance to the Court, and confirmed that the
Official Opposition "welcomes" Justice Cromwell's appointment, after
he consulted informally with Liberal leader Michael Ignatieff.

8. (SBU) Comment: The merit of Cromwell's appointment is not in
doubt, but the Prime Minister's decision to bypass the Parliamentary
scrutiny process he had championed on the same day as he reversed
himself on the appointment of 18 unelected new senators (reftel)
appears to reflect a sudden pragmatism as well as a haste to clear
the decks should the government fall, underscoring doubts whether --
or how long -- this government will survive. The predictable cries
of "hypocrisy" and "lack of principles" from the opposition
nonetheless reverberate far less deeply with the public in the midst

OTTAWA 00001586 002 OF 002

of the holiday season (and the expected first coast-to-coast white
Christmas since 1971!) than would normally be the case.
BREESE

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