In brief, the process of appointing Judges to provincial superior courts such as the Court of Queen's Bench goes like this. Following a vetting process within the province in respect of which the appointment is to be made, recommendations go to the Federal Minister of Justice. The Minister of Justice then presents the Cabinet with his recommendation of the appointee. Cabinet then approves the appointment (only in remote instances do they not approve), and that decision is sent to the Governor General for her formal approval. The big sticks involved in appointing a Judge at this level, make no mistake, are the Minister of Justice and the most important member of the cabinet - the big enchilada - the Prime Minister of Canada. That is the process now, and that was the process in 1985.
Justice Jeffrey Oliphant, presently the Associate Chief Justice of the Manitoba Court of Queen's Bench was appointed in 1985. The Prime Minister at the time was the Right Honorable Brian Mulroney. Prime Minister Mulroney was still in power when Oliphant received a promotion from the federal cabinet in 1990 to become the Associate Chief Justice.
By all reports Justice Oliphant has been a good judge.
Being a judge is also a good job. The pay is in the 250,000 range. Pensions are generous and indexed. While at work, all of your needs are taken care of by orderlies, drivers, and other minions. There is plenty of time off. The public caters to you as do, of course, lawyers. Its nice to be a judge.
One would expect that Justice Oliphant would be grateful to the Rt. Hon. Brian Mulroney, for having been a major influence in his judicial appointment. Normal people would be very grateful indeed in those circumstances.
The current Prime Minister Stephen Harper has seen fit to appoint Justice Oliphant to the role of Commissioner in the forthcoming public inquiry respecting the dealings between Karl-Heinz Schreiber and Mr. Mulroney. The subject matter of the inquiry includes allegations of nefarious business dealings between the two. Those dealings at this stage appear to border on criminality or at least impropriety on the part of the principal players and perhaps others. It is already a national scandal. Oliphant will be called upon to report his findings to Parliament. Legal repurcussions from such findings are very likely to ensue.
Justice Oliphant is in a conflict of interest. At the very least he is in a perceived conflict of interest. He is called upon to make findings in respect to the actions of a man he owes - perhaps not in a legal sense, but certainly in a human sense - much. The inclination to white-wash, at least Mulroney's role in the affair, may be present.
Harper, again being too politically cute by half, should never have approved the appointment. Oliphant should never have accepted it. Oliphant should recuse himself. Harper should appoint someone who is untainted by any previous relationship to one of the principal parties.
This is not to disparage Justice Oliphant. It is to do the right thing.