By Cristin Schmitz for Law360 Canada
British Columbia’s bar and bench are working to recruit qualified lawyers with diverse legal and life experiences to apply to become judges of the B.C. Supreme Court.
The superior trial court has been contending with too few judges for the past several years — as of May 1 there were a dozen vacancies on a court of 95, a high 13-per-cent vacancy rate.
Unusually among superior trial courts, the B.C. Supreme Court also currently suffers from too few lawyers applying to join the pool of vetted and qualified judicial candidates, from which the federal government is committed to filling the prestigious and challenging $383,700-per-annum posts, which also feature a lucrative indexed defined-benefit pension.
In aid of addressing the problem, the B.C. branch of the Canadian Bar Association (CBA-BC) has again organized an outreach session for lawyers, on May 16, titled “Diversity on the Bench.” Participating will be B.C. Provincial Court Chief Judge Melissa Gillespie and her colleagues Justices Delaram Jahani and Gary Cohen, as well as British Columbia Court of Appeal Justice David Harris and B.C. Supreme Court Justices Jasvinder Basran and Jasmin Ahmad.
Kerry Simmons, executive director of the CBA-BC, said the branch continually encourages lawyers to apply for the bench and learn about the application process. “We host ‘Diversity on the Bench’ every year to demystify the process and allow lawyers to hear directly from judges about their work and experiences in applying,” she said.
Simmons said she does not know the size of the current pool of candidates for the B.C. Supreme Court who have been approved as “recommended” or “highly recommended” for appointment by the federal Justice Minister David Lametti.
However, she said the bar association is aware of perceptions within the bar that are experienced by some as barriers to the bench, and thereby contribute to the present shortage of applicants for the B.C. Supreme Court.
One possible barrier is the federal application form’s emphasis on courtroom experience, both in requests for references from judges and opposing counsel, and requests for reported decisions, Simmons said. “Much of lawyers’ work does not involve appearing in court sufficiently regularly to establish a reputation with judges or reported decisions,” she explained.
The association hears concerns that an applicant must have demonstrated extensive volunteer work with professional associations in order to be considered for a judgeship.
“People ... may not be doing that,” Simmons remarked. “It may be because of the client demands they have that they are working to help. ... It might be that they have other family obligations to aging parents or children [and] they're focusing on that,” she said. “It’s just that if you’re evaluating applicants by how extensively they volunteer, you may be missing people who are excellent thinkers, compassionate ... and just simply are not currently doing lots and lots of volunteer work.”
Simmons said “the message that we share with lawyers is that ‘it is your knowledge and experience that are the main criteria and if you are ready to apply that to judging, you should’ ” apply.
During the information sessions the judges talk about the many different ways people volunteer their time, or make contributions to society, that can be put in the application form. “They try to dispel the perception that it needs to be big professional association work [and emphasize] that volunteer work or contributions to society in any way are equally important,” Simmons said.
One example would be a person who focuses on working for their clients and their family. “They do contribute to a parent’s advisory council at a children’s school where they are caring about community, working with others, meeting people of different backgrounds and experiences,” Simmons said. “That which they may think is not professional volunteerism is volunteerism and contribution and experience that is valid.”
Simmons also said the “lack of transparency” in the process for appointing superior court judges could be a disincentive to applying for the federal bench. “There is a continual call for more applications, but applicants don’t know what happens to their application after it is submitted, other than to watch others be appointed,” she explained.
“There needs to be more contact between the Office [of the Commissioner for Federal Judicial Affairs] and the applicant so they know the status of their application or, if [they are] ‘not recommended,’ where they were perceived in lacking qualifications.”
Law360 Canada asked B.C. Chief Justice Robert Bauman during a recent interview why he thinks someone might want to join the superior court. “It’s not for everybody,” answered the chief justice, who spent 12 years as a trial judge. “But for a lawyer who enjoys the idea of resolving legal issues, bringing to bear their talent for legal analysis, and their ability to research and think about the law, and to advance the law, for that kind of lawyer, it is the best job in the world.”
Chief Justice Bauman said being a judge “gives you a sense of performing a valuable social function,” as well as the prestige of judicial office, which is something to be proud of. “And for many lawyers, it marks the most significant event in their career,” he said.
Asked whether the federal benches should mostly comprise big-firm lawyers, Chief Justice Bauman replied “absolutely not.”
“We need lawyers from all over our ... larger community,” including such areas as legal aid work, and immigration law, he affirmed. "We’re seeing ... lawyers coming from not the traditional spots.”
“Mind you,” the chief justice added, “we want lawyers from big downtown firms because inevitably they’re excellent lawyers, and they make excellent judges.”
But "we’re seeing judges coming from universities, law schools. We’re seeing judges come from rural areas. We’re seeing judges come from business backgrounds. So that kind of diversity is important as well.”
Chief Justice Bauman said he wishes he knew why the number of applications to join the B.C. Supreme Court has declined.
“I think there are a number of things,” he speculated. “The pandemic changed a lot of our attitudes towards work, and where we want to work ... and it’s a hard job.”
The judges of the superior court travel on circuit six or eight weeks a year, so that might be disincentive for some. “That can be daunting for some young parents,” he said.
“There may be issues of pay, and whether it’s adequate for some,” suggested the chief justice, given the high earnings of some senior lawyers in private practice. “And it may be misperceptions about the workload,” he said. “The workload is heavy, but it’s manageable and it’s certainly rewarding.”
Chief Justice Bauman said partisan politics (e.g. connections to the incumbent federal Liberal government or the lack thereof) “in my experience in British Columbia hasn’t played a big role in the appointment process. I would hope it doesn’t play a role in the process at all. But in my experience, it hasn’t.”