VZCZCXRO3843
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