Some bar groups leery of top judge’s idea that appellate nominees face public scrutiny

  • August 19, 2019

By Cristin Schmitz for The Lawyer's Daily

Chief Justice of Canada Richard Wagner believes introducing appellate court nominees to the public would bolster confidence in the judiciary — but he’s not advocating any particular method of doing so, his office tells The Lawyer’s Daily.

That clarification emerged after bar groups started reacting to the top judge’s suggestion that he would like to see jurists nominated for the 125 intermediate appellate posts in the country face public scrutiny before their appointments, akin to what Supreme Court nominees face in Parliament.

“The fact that the judges of the Supreme Court are presented to the public in Canada is a great thing — it helps to increase the trust of the Canadian people,” Chief Justice Wagner is quoted by the Globe and Mail Aug. 9, alluding to the question-and-answer sessions with MPs and senators that most Supreme Court of Canada nominees have participated in since 2006.

“The days when judges were appointed without giving any explanations — where they came from, what they are doing, how they do it — I think those days are gone,” the chief justice of Canada explained to the Globe’s Sean Fine. “Why? Because people need and deserve the information. There is no reason we should not give it to them. We have nothing to hide.”

That idea of public nomination hearings met with resistance from some organized bar groups. “With respect I do not feel that the chief justice’s suggestions would add transparency,” Toronto’s William Trudell, chair of the Canadian Council of Criminal Defence Lawyers told The Lawyer’s Daily, reacting to the chief justice’s comments in the Globe. “Moreover [public hearings] would be time-consuming, expensive, open the door to intrusive unhelpful probing and to abuse by special interest groups and political grandstanding.”

The Lawyer’s Daily asked Chief Justice Wagner to elaborate on what he had in mind.

In a prepared statement, his office said the chief justice is not advocating any particular method of introducing appellate judges to the public, e.g. parliamentary review of appellate nominees.

Rather his comments were of a piece with the top judge’s general emphasis on openness and accessibility since he assumed the role of chief justice of Canada in 2017.

“The chief justice wants Canadians to understand who judges are and where they come from, and to know that judges are there for them,” the statement explains. “Judges are not abstract ideas, and they don’t live in ivory towers. They are people, and they share the same values and concerns as other Canadians. There is sometimes a tendency to see judges are far removed from society, and that is not true.”

“To be clear,” the statement continues, “what the chief justice was suggesting is not a vetting exercise, because that is already done, and it is done very effectively [by independent, non-partisan judicial advisory committees]. Instead, it is an opportunity for judges to show, and for the public to see, who they are — to demystify them to an extent. There are undoubtedly various ways to achieve this, at various levels, and it’s up to justice stakeholders to determine how best to do that.”

Bar groups asked for their views by The Lawyer’s Daily were supportive of the importance of meaningful transparency in the federal judicial appointment process.

“I think it’s right that the chief justice is raising this issue of transparency, at the time that he’s doing it,” said the president of The Advocates’ Society, Scott Maidment of Toronto’s McMillan.

“Regardless of whether one agrees that we ought to move to parliamentary hearings or not, there is no question that we ought to be moving to a more transparent appointment process,” he suggested. “It’s quite natural that as courts begin to deal more with issues of policy, that the Canadian public want to know more about the people who are making policy-based decisions, and they want to know more about how they get chosen.”

Maidment, whose national group of 6,000 litigators has not taken an express position on whether jurists nominated for the intermediate appellate courts should be publicly questioned, said bar opinion is divided.

“The holding of hearings of Parliament is not the only way, or necessarily the best way, to enhance transparency,” he opined, given the risks that such a process could be politicized.

A better method to enhance transparency, he suggested, would be for the federal judicial advisory committees across the country to follow in the footsteps of the legislated and much applauded system for appointing provincial judges in Ontario, which includes advertising specific vacancies, and a diverse and non-partisan vetting committee conducting candidate interviews and creating binding shortlists of the best candidates.

Maidment suggested that if the federal appointment system were reformed in that way — parts of both the candidate interviews and applications for the bench could be made public.

“We believe that the features of that [Ontario] process should be adopted with respect to all appointments to the superior and courts of appeal,” he said. Maidment said The Advocates’ Society believes the overriding considerations in the federal judicial appointment process should be: increasing public confidence in transparency, diversity and inclusiveness; eliminating political partisanship and enhancing judicial independence; and ensuring that the highest calibre of candidates are appointed to the courts.

At press time some important bar groups, like the Barreau du Québec and the Criminal Lawyers’ Association, did not have formal positions on the idea of appellate court nominees being publicly questioned in Parliament or other fora.

Others have long been opposed, however, to parliamentarians questioning judicial candidates.

“The Canadian Bar Association believes that Parliament should not play a role in the selection or appointment of federal judges — it is neither necessary nor desirable for the legislative branch to be involved,” CBA president Raymond Adlington told The Lawyer’s Daily. 

“Parliamentary review of Court of Appeal nominees, with hearings that could become heavily politicized, could pose an unacceptable threat to the independence of our judiciary,” he explained. “We are opposed to any system which would expose judges to parliamentary criticism of their judgments, or cross-examination on their beliefs or preferences or judicial opinions, or any measure which would give to Canadians the mistaken impression that the judicial branch answers to the legislative branch.”

Adlington, of McInnes Cooper in Halifax, acknowledged that successive governments in Ottawa have put some safeguards in place — such as imposing and enforcing parameters for politicians’ questioning at parliamentary hearings with Supreme Court of Canada nominees — in order to prevent the politicized attacks seen in Senate confirmation hearings of U.S. Supreme Court nominees.

“However, those [Canadian] safeguards rely on the goodwill of the political parties,” Adlington noted. “The CBA remains concerned about the risk to judicial independence if the hearings were expanded” to nominations for the intermediate appellate courts.

Trudell said the appointment system for federal appellate judges is working well, including the confidential screening of candidates by the non-partisan judicial advisory committees across the country. “I think we need to do a better job explaining judgments, as opposed to replacing, and indeed criticizing, the pretty impressive system of judicial appointments that we now have in place,” he suggested.

He pointed out that judges being elevated to the appeal courts from the superior or provincial trial courts are already required to fill out detailed applications; their references are checked; extensive consultations about them are undertaken; and their judicial track records are examined.

“By and large we have an extraordinary respected bench,” he said. “These committees are independent, knowledgeable about the process and the essence of good judges. They are non-partisan and varied in their makeup, … tend to take their tasks very seriously and are immune from outside pressure.”

Although the federal judicial advisory committees do not interview candidates like their “very impressive” Ontario counterparts, “the screening is meaningful,” he emphasized.

Trudell suggested what is needed to promote confidence in the justice system is more outreach and education by judges about the courts’ work, their decision making and the importance of the rule of law. “Explaining what judges do ... is lacking in the public’s understanding,” he said.

Dalhousie University law professor Richard Devlin, an expert on judicial appointment processes, argues that there have been few transparency gains from the largely anodyne parliamentary reviews we have seen so far of Supreme Court nominees. (Last month’s tightly controlled public question-and-answer and session with Quebec Court of Appeal Justice Nicholas Kasirer, who will be appointed to the top court effective Sept. 16, was notably unrevealing as the nominee shared few details about his family background and declined to comment on many subjects raised, including his judicial philosophy.)

“I don’t see any particular upside to [hearings] because it seems to me that it really hasn’t been a particularly helpful mechanism for Supreme Court of Canada judges,” Devlin said. “As the process has unfolded, nothing has ever really come out of any of the hearings and people who are being asked questions tend to give very generic, sort of ‘mom-and-apple-pie,’ answers so I find that it doesn’t really do anything to improve the process.”

Devlin says the quality of — and confidence in — the federal judicial appointment process could be much improved by fettering the government’s present broad appointing discretion so as to ensure that only the best candidates are appointed — free from partisan considerations. “If they are really thinking about improving the process for appointing appellate court judges, then they should have a much more independent judicial appointments advisory committee [system] than the one they have now,” he advised.

While the vetting committees serve the function of screening out unqualified candidates, when it comes to picking who will be appointed, the current federal system still leaves “way too much discretion” to the minister of justice and prime minister, he said.