The decision about who gets to be a judge in Canada is made, in the end, by politicians. And political decisions, even when they don’t reach the level of blatant and deliberate stacking for ideology, risk having some sort of partisan taint.
While the final decision about judicial appointments is properly the role of government, partisan considerations should not determine the best candidates. It can be argued that the political vetting of judicial applicants – which happens after the Judicial Advisory Committees have made their recommendations – has been a factor in the number of vacancies on the bench, which is a direct contributor to court delays and the access to justice crisis in Canada.
The CBA has long supported an open and transparent process for appointing judges, based solely on merit and ultimately representative of Canadian society, that would result in a fairly chosen and independent judiciary.
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.
Increasing transparency, however, does not mean making all aspects of the process open to public scrutiny. Some of the vetting process rightly goes on behind closed doors, which respects the privacy of applicants and guards against interference. Breaching confidentiality by releasing names and commenting on the suitability of applicants who may or may not be appointed demeans the selection process and ultimately all those who hold the office of judge.
In its 1985 report, the CBA’s McKelvey Committee on the appointment of judges concluded that, “The public is entitled to a system of selection that will open the doors to more candidates, provide careful and measured consideration of qualifications, and not be subject to partisan influences.”
Successive CBA reports and resolutions have repeated the call for an open, transparent and apolitical process that will ensure the appointment of qualified candidates. And since the 1985 report progress has been made.
Most recently, in 2016 the federal government announced changes to the appointment process – including an open application process, publicized selection criteria, and advisory committees that are more diverse and less ideological, with stakeholders, including nominees of the Justice Minister, the Courts, the legal communities, and the public.
The CBA welcomed the changes, but no matter how independent the shortlist, vetting those candidates for party support makes the decision a political one.
The CBA does not believe that prior political involvement should exclude a prospective applicant from the bench – in fact, it‘s one indication of community engagement that may point to a good judge. It is when partisan activity becomes the deciding factor in an appointment that we have a problem.
It is time to make the system less open to manipulation.