One of Justice Minister David Lametti's donors gets a judicial appointment
PMO was anxious about the optics of the appointment, sources say
A lawyer who contributed $2,900 to Justice Minister David Lametti's Liberal nomination bid and riding association has received a judicial appointment.
Montreal lawyer Philippe Bélanger was appointed to the bench through a lengthy process that caused tensions between the Prime Minister's Office and Lametti's office, sources said. One person involved in the process called it "Kafkaesque," while another said the appointment took much longer than normal to get through the approvals stage.
The source of that tension was not the merits of appointing Bélanger to the Quebec Superior Court. Bélanger, a partner at McCarthy Tétrault, is one of Canada's top experts in bankruptcy law and enjoys a strong reputation in legal circles, said sources in government and the legal profession.
Instead, the PMO was concerned about the optics surrounding the appointment, the sources said — the financial donations and the fact Bélanger and Lametti both clerked at the Supreme Court at the same time.
Under fire from opposition MPs and legal experts over allegations of partisanship and favouritism in judicial appointments, said the sources, the Trudeau government wanted to avoid giving its critics fresh ammunition.
Under the current judicial appointment process, the justice minister is responsible for recommending a candidate for approval by cabinet, following a due diligence process overseen in part by the PMO.
In a statement issued to Radio-Canada on Wednesday evening, Lametti's office said the minister decided to proactively bring the matter to the attention of Conflict of Interest and Ethics Commissioner Mario Dion.
"As the individual was a professional acquaintance and had made political donations to him prior to his appointment as Minister of Justice, the Minister felt that it was important to seek the advice of the Office of the Conflict of Interest and Ethics Commissioner," said press secretary Rachel Rappaport.
"The Commissioner reviewed the situation and determined that there was no conflict of interest in this instance.... Following receipt of the Commissioner's determination, the Minister provided his recommendation to cabinet in the usual fashion."
In an interview on Thursday, Dion confirmed that he concluded there was not a conflict of interest in this case based on the information provided by Lametti. He said that the key issue at play was determining if there was a friendship between Lametti and Bélanger.
"To be in a conflict of interest, one has to be involved in a decision that affects a family member or a friend," Dion said. "Making donations to a political party, or to a particular riding, does not indicate in itself a friendship. It is perfectly legal to make political donations."
'Potential for a scandal'
François Landry — a political aide who was working directly on the judicial appointment process in Lametti's office last year — wrote a memo to chief of staff Rachel Doran on Feb. 18, 2019, warning that partisan considerations in the appointments process have created the "potential for a scandal."
According to Elections Canada, Bélanger donated a total of $1,400 to Lametti's bid for a Liberal nomination in 2014 and 2015. Lametti was elected in the riding of LaSalle-Émard-Verdun later in 2015.
Records also show that Bélanger gave $1,500 to the Liberal riding association in LaSalle-Émard-Verdun in 2018. According to Bélanger's postal code in the Elections Canada database, he lives in the riding of Mount Royal.
According to Elections Canada, Bélanger made more than $10,000 in other donations to the Liberal Party between 2006 and 2019.
Lametti became justice minister in early 2019, replacing Jody Wilson-Raybould.
'Partisanship in reverse'
Laval University law professor Patrick Taillon said the government seems to be paying a price now for Canadians' lack of confidence in the federal nomination process.
"We have a case of partisanship in reverse," he said. "This goes to prove that an imperfect process sows doubt on the outcome."
Taillon said that making political donations is a "fundamental right" and should neither aid nor disadvantage a candidate.
"It should be a question of merit," he said. "Having political ties should not be taken into account, in that it is a fundamental right to be able to give to a political party."
In an open letter dated Nov. 6, the Canadian Bar Association said the federal appointment process could give rise to allegations of partisanship and could undermine the confidence of Canadians in their judiciary.
"It is time to make the system less open to manipulation," said the letter, signed by CBA president Brad Regehr.
The CBA said there is nothing wrong with lawyers making financial contributions to political parties — but those donations should not be factored into the selection of new judges.
"By continuing a process that is open to speculation about political interference, the government risks eroding the confidence of the public in the independence and fairness of the justice system itself — particularly in marginalized communities that already feel the system doesn't work for them," the letter said.
On Monday, Democracy Watch filed a challenge of the appointment process in the Federal Court, alleging that it's undermining the independence of the judicial system.
"The current federal judicial appointment system is open to too much political interference by the ruling party, which violates the independence of the courts that is needed to ensure democratic good government and fair law enforcement for all," Duff Conacher, co-founder of the advocacy group, said in a news release.
In the coming weeks, the justice committee of the House is expected to launch a study of the judicial appointment process. The Bloc Québécois has prepared a motion to that effect and has won the support of the other opposition parties, which together hold a majority of seats on the committee.
Reached by email, Bélanger said he could not comment on the matter.