Troy Riddell and Samuel Mosonyi.
Justice Richard Wagner, the newest judge on the Supreme Court of Canada, caused a stir in December when he suggested that the process used by the federal government to appoint judges below the Supreme Court level — primarily to superior trial courts and courts of appeal in the provinces — be reformed.
Potential appointees, according to Wagner, should appear publicly before a parliamentary committee as he did before his recent appointment to the Supreme Court. Wagner, however, indicated that for practical reasons hearings for now could be limited to appeal courts only.
There was a mixed reaction to Wagner’s comments. One law professor, for example, argued that this would Americanize the system and lead to the appointment of judges who were too deferential to government. Meanwhile, the Globe and Mail editorial board endorsed the suggestion, arguing that since judges have more power to influence policy, they deserve greater public scrutiny. The Charter of Rights and Freedoms inarguably gives judges a more significant role in the area of policy-making relative to the legislatures.
A public discussion about the federal judicial appointment system is welcome.
Currently, applicants for federal judicial positions are screened by committees in each province consisting of three representatives of the public, and a nominee from each of the following: the provincial law society, the provincial bar, the provincial Attorney General, law enforcement, and a judge nominated by the provincial chief justice, who sits as the non-voting chair of the committee.
Candidates are ranked as “recommended” or “not recommended.” Evidence suggests that since the system was introduced in 1988, many appointees have been supporters of the government that appointed them. Such individuals may be excellent judges but there is no way to know whether the very best candidates are being selected.
In terms of the courts of appeal, most appointees are elevated from the superior trial court and the screening committees do not review those appointments. The current federal judicial appointments system is too opaque and leaves too much latitude for patronage.
Moreover, changes made to the appointment scheme in 2006 by the Stephen Harper government arguably further undermine confidence in the system. Prior to these changes, for example, the judicial nominee was a voting member and there was no law enforcement representative. Since the public members and the police representative are chosen by the federal Minister of Justice, the minister now appoints a majority of the voting members (four of seven), which critics argue appears to give the government undue influence over the committees.
The introduction of the police representative has also been seen by some to create bias. A 2007 justice committee report found that it may reduce the public’s perception of judges as impartial. The lack of a counterbalance (such as a defence lawyer) to the police representative, according to a majority of the committee, “strengthens the apprehension that judges have been selected among candidates who support police interests.”
Prior to 2006, the committee ranked candidates into three categories: “highly recommended,” “recommended,” and “not recommended.” The “highly recommended” category was removed by the Conservative government. This had led to the charge that there is now greater scope for the Minister of Justice to select judges on a partisan basis — although even when there was a “highly recommended” category we had no idea as to whether judges were being selected from that category or the “recommended” category.
However, rather than starting the discussion about reforms with reference to the Harper revisions or with a specific proposal like Wagner’s, it might be beneficial to begin with such interrelated questions as: what do judges do at each level of court; how do we minimize the potential for undue partisan influences in the process; and what mechanisms are available to build transparency and confidence?
If we start with the first question, the work of trial court judges, provincial appeal and Supreme Court of Canada judges differ significantly from one another. Compared to lower courts, for instance, the Supreme Court has much more control over what cases it will hear and controversial Charter of Rights cases compose a much larger percentage of its docket. Given that trial court judges adjudicate various disputes by applying law to a set of facts and provincial appeal courts primarily review those decisions for errors of law, it might not be as necessary or appropriate to have public parliamentary hearings for them since they have less of a policy-making role than do Supreme Court judges.
A more apt model for appointing provincial superior trial court and court of appeal judges may come from models used by provinces such as Ontario to appoint their trial court judges.
In these models, a nominating committee consisting of members of the public, the legal profession and the judiciary present a short list of best candidates to the Attorney-General for appointment. The system could be tailored such that trial court and appellate court candidates would be given different types of questionnaires and interview questions to reflect the nature of their positions. In this system, even superior court trial judges who wish to be elevated to the Appeal Court would be required to undertake this process. Evidence suggests that this type of system, which has been adopted in Britain, reduces the potential for patronage, is more transparent, and increases confidence in the system.
Whether or not one agrees with Wagner’s specific proposal for changing the federal judicial appointments process, he deserves much credit for publicly highlighting that the current system is in need of reform.