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Top secret

Cover story
|Written By Shannon Kari
Top secret

The federal process for appointing judges has been highly murky, and hopes are high for real reforms

It was nearly eight months after the federal election before the Liberal government of Prime Minister Justin Trudeau announced its first judicial appointments, in the wake of an increasing call, even from senior members of the bench, to fill a number of vacancies across the country.

A news release issued on June 17 on behalf of federal Justice Minister Jody Wilson-Raybould made public 15 appointments of either new judges or elevations of existing members of the bench. The appointments included people such as Justice Sheilah Martin, the respected legal scholar and former law school dean, who was elevated from the Alberta Court of Queen’s Bench to its Court of Appeal. The backgrounds of the individuals appointed also appeared to be more diverse than what was the norm under the Conservative government of Stephen Harper. What had not changed though was the process that led to these appointments.

The news release issued by the Liberal government, with its very brief biographical details of each appointee, was no different than in the past. There was no explanation why these candidates were appointed or the process, other than boiler-plate language that can be found on the web site of the Office of the Commissioner for Federal Judicial Affairs. The release was put out on a Friday, the day that governments of all stripes tend to make announcements that they don’t want to have dominating the news cycle. The only hint of change was a statement that the government is “considering ways” to change the judicial appointment process, and that it is committed to “openness, transparency and merit” in the process.

Since those appointments in June, the federal government has announced changes to the appointment process for judges named to the Supreme Court of Canada. A seven-member advisory board was created to review applicants for the position and there are other measures to try to make that process more open.

The changes to the Supreme Court appointment process received widespread media attention and generated much discussion among legal organizations. What has escaped media scrutiny is the appointment process for judges to provincial Courts of Appeal, Superior Courts and Federal Courts — of which there are currently more than 1,100 members and more than 40 vacancies.

The federal government is still promising to reform this process, although it has said little publicly. A spokesperson for the Justice Department told Canadian Lawyer that it is consulting with stakeholders and once it is ready to announce any changes they will be made public.

While the specifics of any new process remain unclear, where there does appear to be agreement in the legal community is that what is in place now needs to be improved and made more transparent in a substantive way.

“The whole process needs to be overhauled,” says Ranjan Agarwal, president of the South Asian Bar Association of Toronto and a partner at Bennett Jones LLP. “It is clandestine and in the hands of a select few,” he suggests.

A framework for federally appointed judges that is more open is also good for improving public confidence in the system, says Craig Ferris, a partner at Lawson Lundell LLP in Vancouver and a bencher of the Law Society of B.C. “There is more confidence in the system if people have a better sense of how judges are selected,” says Ferris.

Some of the criticisms of the existing process include a lack of openness, patronage appointments regardless of which party is in power and that it is a framework that does not recognize the increasing diversity of the legal community in Canada and the overall population.

More than 25 years after law schools in Canada began to be equal in terms of the gender of their students, females make up 36 per cent of all federally appointed judges. There is very little data about the diversity of those on the bench. Of the 79 judges who are currently sitting on the B.C., Ontario and Quebec appeal courts, two are from a visible minority background. The last member of the B.C. Court of Appeal to be from a visible minority was Wally Oppal, who stepped down in 2005 to enter politics, later becoming the province’s attorney general.

Increasing diversity within the judiciary requires more than just statements from legal organizations that there is a need for a bench that better reflects the makeup of its community, says Jennifer Chow, a Vancouver lawyer and past president of the provincial branch of the Canadian Bar Association. “We need concrete steps. We need to see the application of those motherhood principles,” she says.

To achieve these goals requires a better process to select federally appointed judges, says Chow, and measures to broaden the pool of applicants.

Under the existing system, a lawyer seeking a Superior Court-level position, for example, will complete a detailed application form with references, and at some point, a judicial advisory committee in that province or region will assess the candidate. The committees include a nominee of the province’s chief justice, its law society, the CBA and the provincial government. The other members are a nominee from law enforcement and three people selected by the federal minister of justice.

The committee will decide if an applicant is “recommended” or “unable to recommend.” Assessments are valid for two years and forwarded to the federal justice minister. The candidate is only told that they have been assessed, not what the committee concluded.

Unlike the process in many provinces for appointments to the provincial court [see provincial court process sidebar below], there is no short list drawn up for a specific judicial opening nor are there interviews with candidates before a final decision is made. “Professional competence and overall merit” are the primary qualifications for an appointment, states the web site of the Judicial Affairs commissioner, without providing further details.

The general statement about qualifications and the lack of transparency impacts the legitimacy of this process, says Gina Papageorgiou, a Toronto lawyer, who was also elected as a bencher last year at the Law Society of Upper Canada. “These are very important decisions. But basically you have an advisory committee and no one knows how judges are selected. You should be looking for people who can listen, who have compassion,” says Papageorgiou.

Lai-King Hum, president of the Federation of Asian Canadian Lawyers, says merit is a term that is invoked frequently when there are calls for increased diversity in any profession. “How do you measure merit? It is a code word and it can be used for exclusion,” states Hum, a Toronto-based employment lawyer.

The specific demographics of federally appointed judges in Canada are hard to determine. The federal government only keeps data on gender. In a June 2014 reply sent to the Federation of Asian Canadian Lawyers, in which then-justice minister Peter MacKay indicated he was too busy to meet with the organization, he stated that merit was his “overriding consideration” in judicial appointments. At the same time, MacKay stated in the letter that he hoped to appoint more females to the bench. “I am proud to say that women judges currently represent approximately 34 per cent of the complement of federally appointed judges and I am personally committed to seeing this number increase,” he wrote.

Of the 103 new appointments MacKay announced after writing this letter and until the 2015 election, females made up 44 per cent of that total.

The Conservative government made more than 700 judicial appointments during its nearly 10 years in power and what surveys have been done suggest that the majority of them came from not only a narrow segment of the Canadian population but also a narrow segment of the legal profession.

Rosemary Cairns Way, a University of Ottawa law professor, examined appointments from the previous two years in a 2014 academic paper she published. Less than one per cent of new appointees were from racialized backgrounds, wrote Cairns Way. Nearly 50 per cent of those appointed were litigators or corporate/commercial lawyers. Almost 20 per cent of appointees were lawyers for the federal or provincial governments, usually as prosecutors (dozens of former prosecutors were appointed to the Superior Court by the Conservative government, although 95 per cent of criminal cases in Canada are heard in provincial court).

Cairns Way pointed to the United Kingdom as a jurisdiction where “ongoing, bona fide efforts” are taking place to diversify the judiciary and that includes collecting more data about the backgrounds of those on the bench.

What is taking place in the U.K. should also be implemented in Canada, says Agarwal. “We need to shine a light on the statistics,” he says. That includes more overall data about the pool of candidates who are applying for these positions in Canada, Agarwal says.

Increasing the diversity of the judiciary is about “maintaining confidence in the administration of justice,” not affirmative action, says Hum. “There are many qualified people out there. They just do not have the connections,” she suggests.

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[/a]A more diverse judiciary ensures that it can more effectively carry out its duties in a fair and impartial manner, says Lynn Smith, who retired as a B.C. Supreme Court judge in 2012, after 14 years on the bench. “It is important for judges to understand the community in which they live,” she says.

As well, in considering candidates for the judiciary, advisory committees should consider a broad range of factors, says Smith, in part because the job description has changed over the years. “The workload has increased and the cases that do have lawyers are truly complex. With self-represented litigants, you need a good deal of energy and stamina,” she adds.

Any changes to the appointment process should place importance on the role and the makeup of the advisory committees, says Smith, who was the first female dean at UBC law school, before she was appointed to the bench in 1998.

“The committees have an important gatekeeper role. One way to enhance the credibility of the process is to make sure the advisory committees themselves are representative of our population,” says Smith.

One of the first things the former Conservative government did after taking office was to make changes to the structure of the advisory committee. A representative of law enforcement was added to each committee. As well, the federal government had an effective majority of members since the chair does not normally vote. “Highly recommended” was also removed as a possible designation, leaving only “recommended” or “unable to recommend.”

Those changes in 2007 led to a public complaint from the Canadian Judicial Council about the lack of consultation and concerns over the perceived independence of these committees.

In recent years, it has not been unusual for the justice minister to appoint individuals to the committees with clear ties to the Conservative party or publicly stated views on social issues that could be considered controversial. For example, the three federal government nominees for the Ontario “west and south” committee include a former Conservative candidate and anti-abortion activist, a Crown attorney who is also a teaching pastor at an evangelical church and the current director of a local Conservative riding association.

While making it clear she is not commenting on any specific judicial advisory committee, Papageorgiou says it is important that there is diversity of background and life experience for any decision-making body.

“Without diversity, you have a problem with unconscious bias and you are filtering out people who have already faced barriers [as lawyers],” she says.

The study by Cairns Way noted that, in 2014, men made up 75 per cent of the members on advisory committees across Canada. That percentage is similar today; however, in a number of provinces, the advisory committees are not considering applications because the terms of the previous members expired and the Liberals have yet to appoint replacements. B.C., Alberta, Saskatchewan, Manitoba and the one region in Ontario are the only committees that currently have members.

The vacancies are a result of the Liberal review of the overall appointment process. The amount of time it is taking has been a source of frustration to courts and legal organizations in a number of different provinces.

There were 44 vacancies for federally appointed judges as of Aug. 1, according to the commissioner of judicial affairs web site. Supreme Court Chief Justice Beverley McLachlin even weighed in on the issue in a speech at the annual CBA conference in August. “There is something deeply wrong with the hiring scheme that repeatedly proves itself incapable of foreseeing, preparing for and filling vacancies as they arise,” the chief justice said in her speech.

The number of vacancies in Alberta resulted in the chief justice of its Court of Queen’s Bench taking the unusual step of speaking to the media this spring about the issue. Four judges were named to that court in June, but at the same time, two of its existing members were elevated to the Court of Appeal.

Jenny McMordie, vice president of the Alberta branch of the CBA, says the complement of trial-level judges allocated for the province has not caught up with its population growth. “We are in a deficit position. Our judges are working overtime,” says McMordie, a Calgary-based litigator.

The workload and delay not only in filling vacancies but in appointing the number of judges that are needed in Alberta may also discourage candidates, she says. “I am sure some people will not apply,” says McMordie.

Travel, as well as workload, is another issue for Federal Court of Canada judges, who are required to live in the National Capital Region yet have sittings in a number of cities across the country. Marina Sedai, an immigration lawyer in Vancouver, says it is time for the federal government to move more quickly to fill vacancies. “We do not want to see our judges overworked and overwhelmed,” says Sedai. She agrees that there is a need for more diversity on the bench, but in the short term she believes that vacancies should not go unfilled.

The pressure to fill vacancies and at the same time make substantive changes to improve the appointment process as a whole are just some of the challenges facing the government of Justin Trudeau.

Ferris, who chaired a Law Society of B.C. committee that recently submitted a report to the federal government on how to improve the way judges are appointed to the Supreme Court of Canada, says changes to the judicial appointment process cannot be cosmetic. “The proof comes from how it is implemented. It is important to put in a process that is followed and about getting the best people to be judges, not just about how do I get through this process,” says Ferris.

While he is critical about the existing framework for federally appointed judges, Agarwal is willing to have some patience in terms of when the reforms will be announced and then put into place. “I want the process that comes out of this to be good and stand the test of time,” he says.

Provincial courts: a better model?

The process for a lawyer in Ontario seeking an appointment to the provincial court is not that much different from a traditional job application in another field.

When specific spots on the bench become available, the opening is publicly advertised. Some of the applicants are selected to be interviewed by an advisory committee and then a very short list is forwarded to the attorney general to decide who will be appointed to the position.

The framework was introduced in Ontario more than 25 years ago and it continues to be modified slightly over time. Many other provinces have a similar process for selecting judges to provincial courts, although Ontario is unique in that a majority of the 13 people on its Judicial Appointments Advisory Committee are lay members. As well, instead of a list of recommended candidates submitted to government, provincial court positions are selected for an actual opening in a community once it becomes available.

The process has generally received good reviews from the legal community in Ontario and is considered more transparent and less susceptible to allegations of political patronage.

“It is a good model,” says Lai-King Hum, national president of the Federation of Asian Canadian Lawyers.

That view is echoed by Gina Papageorgiou, a Toronto lawyer and bencher at the Law Society of Upper Canada.

Even the information provided to applicants on the Ontario committee’s web site is more helpful than what is public for individuals seeking federally appointed spots on the bench, she suggests. “I understand it. There is a list of criteria and I know what they are,” says Papageorgiou. Another positive aspect of the provincial court selection process in Ontario is the makeup of the advisory committee. “They make sure it is diverse,” she states.

The former chair of the Ontario committee, who recently retired from it after more than a decade of service, says the local aspect of each appointment is something he believes is important. “It focuses on a single appointment in a single community,” says Hanny Hassan, an engineer by profession who is also the current chairman of the board of governors at Western University in London, Ont. “You are choosing a particular judge, for a particular kind of community,” he explains.

The committee does its own research to select a short list for interviews. This part of the process can be stressful, even for experienced lawyers, notes Hassan.

“You may get questions that appear peculiar to you. But you will know from the questions we ask what the committee is looking for. These are significant decisions and I think feedback is very important,” says Hassan, who adds that when he walked out applicants from the interviews, he encouraged them to write down their thoughts about what had just taken place, for their own benefit.

Provincial legislation that governs the work of the committee requires that it submit the names of “two or more” acceptable candidates for a position.

“The committee likes to keep that number low,” says Hassan.

In British Columbia, there is also a process where a short list is drawn up from applicants and then some are selected for interviews with the provincial judicial council.

The criteria to be selected is not a mystery, says Jennifer Chow, a Vancouver lawyer and member of the council.

“It is very clear. It is very transparent,” says Chow, who credits B.C. Provincial Court Chief Justice Thomas Crabtree for a focus on increased openness in all areas of the court’s operations.

— Shannon Kari

  • Lawyer

    Vivienne Stewart
    Interesting piece on the judicial appointments processes across the country.

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