Monday, May 31, 2010

Can Bastarache Inquiry Save Jean Charest?

It's likely that loose cannon, Marc Bellemare, did Premier Jean Charest a huge favour in accusing him and his government of exercising undue influence concerning the choice of provincial judges. Mr. Bellemare has publicly alleged that the Premier and other Liberal cabinet ministers put varying degrees of pressure on his office in regards to the appointment of three specific judges to the bench, during his short tenure as Minister of Justice.

The effect of the allegations shifted the political battleground away from the scandal embroiling the government concerning the charges that the construction industry has been making large donations, both legal and illegal, to the Liberal party and receiving benefits in return. The opposition and the press have been clamouring for a public inquiry, while the government has been stubbornly refusing. With the pressure building each week, the government's attempt to sweep the issue under the rug was faltering badly, that is, until the fresh allegations stole the headlines.

And so Mr. Bellemare has made a strategic error and thrown the Liberals a life preserver.
In accusing the government of influencing the appointment of judges, the much more dangerous and potentially disastrous construction scandal, while not forgotten, is pushed somewhat to the rear.

Even the dumbest boxer understands that once you have badly injured an opponent's left flank, it makes no sense to attack the stronger right side. Yet that is exactly what Mr. Bellemare has done with the Parti Quebecois foolishly following. While Mr. Bellemare made a forgivable rookie mistake, there's no excuse for Madame Marois. With so many scandals brewing, the leader of the opposition decided to attack on all fronts, instead of concentrating her fire on the richest target.

From Mr. Charest's reaction and renewed vigour, it's safe to say that he feels a lot more comfortable defending himself on these new allegations then that of the construction scandal.

When it comes to choosing judges, we'd like to believe that the choice is a cut and dried process, bereft of political interference, but it is anything but and always has been, regardless of the government.

Appointments to the highest court in the land, the Supreme Court of Canada is the ultimate example of a politically partisan appointment. Choosing a candidate that shares the ruling government's ideology is de rigueur and nobody complains about the process.

And so it is normal that a Conservative government appoints a judge who shares a conservative point of view and a Liberal government chooses a liberal-minded candidate. When the Liberals were last in power, Justice Minister Irwin Cotler, appointed ultra-leftie/feminist/human rights advocate, Rosalie Abella to the bench, over the snickers of court watchers who complained that she was under-qualified and had benefited from a close personal relationship between the Cotler and Abella families.

At least an appointment to the Supreme Court pays ideological dividends to the appointing government, as issues of national interest are decided upon. An appointment to a provincial lower court, has no such benefits. Cases are mostly mundane and those of import usually find themselves pushed up the ladder, eventually landing in the Supreme Court.
Once named, a judge is completely free of influence and is immune to pressure. A judge must recuse himself from any case where he is acquainted or had a relationship with the parties involved and so there's really not much political or personal capital to be earned in such an appointment.

Judge Andree Ruffo, perhaps Quebec's most famous Youth Court judge candidly admitted that because she was apolitical, she was passed over for selection by the PQ for a judgeship and didn't get appointed  until the Liberals came into power when she benefited from a personal contact in the Premier's office.

How did she repay her benefactor?
By humiliating the Minister of Health and Social Services by having two children driven to the office of the Minister because there was no place for them in the youth protection system. For an interesting piece about Judge Ruffo and the so-called independence of our judiciary, read an interesting article HERE.

The PQ should tread lightly in condemning the Liberals in relation to the naming of judges. In 1995 during the PQ government's term in office, the late wife of then cabinet minister Bernard Landry, Lorraine Laporte, was appointed to the bench with Landry telling anyone who would listen that he had no idea that she was being considered.

And so it is not strange that no one in the PQ is bringing up the fact that Marie-Claude Gilbert,  the wife of Sam Hamad, Minister of Employment, was appointed to the bench last year. The Liberal minister also claimed that he learned of the appointment the day it was announced.
Perhaps Mr. Hadad and Mr Landry share the same media consultant....

Norman MacMillan a cabinet minister in the Charest government is unapologetic and admits that he made a recommendation to Marc Bellemare to consider one of his constituents, the son of a campaign fund-raiser, in relation to a judgeship.
Mr. McMillan considers it part of his job and sees nothing wrong with the practice of making representations on behalf of constituents. His frank and unabashed admission, goes to the heart of Bellemare's claim of undue influence.

Most commentators are under the mistaken impression that the decision to appoint judges resides exclusively with the justice minister. This is not true. According to the law, the responsibility lies with the government. It make sense that the justice minister runs point, but nevertheless, it is completely legal for the Premier or other cabinet ministers to make their views known. 

The final decision was Bellemare's to make and unless he has concrete proof that money changed hands or that he was absolutely ordered to select a certain candidate, he is doomed to fail in his pursuit of Charest over the issue, unless that is, he comes up with a new bombshell or smoking gun.

Former Supreme Court Judge Michel Bastarache, who will be chairing the commission looking into the affair, has already made pronouncements that seem favourable to the position of the government. Speaking to Le Devoir,  he said;
 "There is "confusion" damaging the public discourse between "political appointment" and "partisan appointment....  Hopefully the commission will help to clarify these things."  
Mr. Bastarache has also said that he is also concerned about the kind of frenzy that has gripped the people in relation to politicians.   LE DEVOIR

As to the $700,000 defamation lawsuit launched by Mr. Charest against Mr. Bellemare, it is simply another tactic to slow down and retard the debate over the construction payola allegations and to keep the press talking about judgeships. As long as the lawsuit is alive, Mr. Bellemare will be entreated by his lawyer to make no more pronouncements against Mr. Charest. Judges take a dim view of such actions.

With a little effort from Mr. Charest's lawyers, the court action can drag on for years, certainly until after the next provincial election. If I was Mr. Charest, I would file the lawsuit in Sherbrooke, his hometown and constituency. The Court district there is just about the most backlogged jurisdiction in the province and it will be years before the case can possibly be heard!

Mr. Bellemare's motive for his unbridled assault on Mr. Charest remains a mystery and has been characterized in the press as credible because there seems to be no reason other than altruism for the attack.
Now that he's being sued, all his pronouncements will be immediately suspect and viewed as a partisan effort to cast aspersions that will help win his court case.
Well-played Mr. Charest!

Just a note about defamation suits. Actions for defamation that play out in court are rarely about reputation. Like the London press, settlements are quick when the defendant's actions are clearly defamatory.
That being said, cases bog down when the defendant holds to the bedrock principle of libel law, that truth is an absolute defence. If what one says is true, the person suing cannot win a the libel case, even if he's been defamed.

I am reminded of perhaps the most egregious miscarriage of justice in the case launched by the famous entertainer Liberace, who sued a London magazine in 1954 for implying that he was gay. The entertainer swore up and down at the trial that he wasn't a homosexual and hilariously won the case when the defendant couldn't prove otherwise. In 1982, Liberace was sued for palimony by his live-in boyfriend and he died two years later of AIDS.  Talk about nerve.

I think Mr. Charest has an excellent case and a good chance to win against Mr. Bellemare. Even if he loses or abandons the case in a couple of years, he will have already have won.

After a long and tedious process, one in which the press and the public will lose interest, Charest is likely to be vindicated by the Bastarache Commission, unless something unforeseen is revealed.

After having the Charest government on the ropes, all Mr Bellemare had to do was- nothing.
The press and the opposition had enough muck to advance the fight on the construction industry front and with the public screaming for blood, it would be a matter of time before the Premier's position became untenable.

Mr. Bellemare has already emptied his quiver of poisoned arrows and without a smoking gun, the public and the press will quickly lose interest. The cross accusations will become a case of 'he said, they said,' and with lawyers popping up every few moments to object and demand side-bars, the spectacle and TV drama will be low.

Mr. Bellemare and many on the PQ side have already come to this same conclusion and are now orchestrating a campaign to discredit the Inquiry, in general and Michel Bastarache, in person, a clear signal that even they anticipate coming out on the wrong end of the findings.

Because of Mr. Bellemare's gaffe, Mr. Charest has clawed his way back from the brink of political oblivion. He has picked himself up from the canvas after suffering a nine count and seems to be re-invigorated. 

It's still a very long shot as to whether Mr. Charest can save himself and his government, but he has been given a small window of opportunity.

It is obvious that a political rookie like Bellemare has a lot to learn from the old pro Charest.

1 comment:

  1. Jean Charest has been in politics half his life and no doubt is an old pro. I think the population is getting tired of him and I believe the electorate will inevitably vote him out. No matter. He'll be drawing two fabulous politician's pensions, federal and Quebec (already is drawing a federal MP's pension) and he's set for life.

    I'm sure after he is ousted from politics, or chooses to step down (whichever comes first), he'll join the likes of Heenan Blakie, a prestigious law firm known for containing lots of politicians put out to stud with the title "Honorable" or even "Right Honorable". It really dazzles their letterhead, and I imagine directorships will seek the prestigious honor of a marquee name like his.

    Being a politician is a license to print money.