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Democracy Watch files lawsuit against federal government’s too-political, unconstitutional judicial appointment system

Case alleges system is too open to political interference, as has been revealed over the past year, and violates independence of courts and public’s Charter right to impartial courts

Monday, November 16, 2020

OTTAWA – Today, Democracy Watch released the application it has filed in Federal Court challenging the federal government’s system for appointing judges to the federal courts, and all provincial superior courts and courts of appeal, because it is too open to political interference that violates the constitutional principle that guarantees the independence of courts, and the public’s Charter right to impartial courts. Wade Poziomka of Ross & McBride LLP is leading the litigation team representing Democracy Watch and its co-founder Duff Conacher in the case.

The appointment process for these courts matters a lot because the Supreme Court of Canada refuses to hear 90% of appeals from these courts, and many appeals are also refused by provincial appeal courts, so in many cases the provincial superior courts are the public’s court of last resort. The constitutional guarantee of the independence of the courts has been upheld in several rulings on the measures in Part VII of the Constitution. And sections 7 and 11(d) (and, indirectly, 24(1)) of the Charter have been applied in rulings to ensure impartial court hearings.

The problems are longstanding, and have been raised in the past: the federal Minister of Justice has too much political control of the process from start to finish, from choosing the majority of the members of the judicial appointment advisory committees in each province and territory (who serve renewable two-year terms), to receiving long lists of candidates from those committees, to circulating those lists secretly to ruling party MPs, Cabinet ministers and ruling party officials before making the final choice. The Minister also makes the decision, without any advisory committee involved making recommendations, to promote a sitting judge by appointing them to a court of appeal. (See Backgrounder below for details)

Details about how many ruling party officials the Minister of Justice involves in reviewing the long lists of candidates for judicial appointments submitted by the advisory committees have been confirmed over the past year by whistleblowers disclosing internal government emails to the Globe and Mail and CBC and Radio-Canada.

And last April the Canadian Judicial Council found that Justice Colleen Suche, spouse of then-federal Natural Resources Cabinet Minister Jim Carr, had violated the judiciary’s ethics code by providing suggestions about who the federal Cabinet should appoint as judges.

In contrast, Cabinet ministers in Manitoba (s. 3.3) and B.C. (s. 21) choose a minority of the members of the advisory committee for their provincial courts (ideally the Cabinet should not choose any of the members). Also in contrast, the advisory committees in Ontario, Quebec and the UK submit only 1-3 candidates for each open judge position, and the minister is required to choose from that short list (and in the UK where the committee only submits one candidate, the minister must explain in writing to the committee if s/he rejects the recommended candidate).

Last week the Canadian Bar Association (CBA) expressed concern about the final step of the federal appointment process in which the Minister circulates the long lists of candidates to many ruling party officials, saying that it is “a process that is open to speculation about political interference” that may be “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.”

There are also concerns that the partisan nature of the appointment process may be inhibiting the appointment of judges that reflect Canada’s diversity. Last June, the Chief Justice of the Supreme Court of Canada expressed the need for a “our courts, including our highest court, to reflect the diversity of Canadians.” In September, 36 lawyers associations, legal clinics and advocacy groups called for changes to the appointment process, as did the CBA, to increase the appointment of more Black, Indigenous and People of Colour (BIPOC) judges.

“The current federal judicial appointment system is open to too much political interference by the ruling party, which violates the independence of the courts that is need to ensure democratic good government and fair law enforcement for all,” said Duff Conacher, Co-founder of Democracy Watch. “Hopefully this case will lead to key changes that will ensure the appointment process for judges across Canada is truly independent and merit-based.”

“The power of Parliament is checked by the power of the judiciary, which has the ability to declare laws enacted by Parliament to be unconstitutional,” said Wade Poziomka, a partner at Ross & McBride LLP who is leading the litigation team representing Democracy Watch. “The independence of the judiciary is a necessary safeguard in a healthy democracy. This case challenges an appointment process that has been in place over more than one government, a process that is ripe for change because it allows partisan considerations to affect appointments.”

“Democracy Watch wants to strengthen the independence of our judiciary and, in turn, public confidence in the justice system,” said Poziomka. “Our first choice is to work with federal politicians and other stakeholders to achieve this goal. If litigation is necessary however, Democracy Watch will argue the merits of its case before the Federal Court.”

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Duff Conacher, Co-founder of Democracy Watch
Tel: (613) 241-5179
Cell: 416-546-3443
Email: [email protected]

See more at Democracy Watch’s Stop Bad Government Appointments Campaign and Stop Unfair Law Enforcement Campaign

Background on Key Problems that Make the
Federal Judicial Appointments System Too Political

To become a federally appointed judge, a person must either be a lawyer for 10 years or a lawyer and quasi-judicial tribunal member for a combined total of 10 years (See s. 3 of the Judges Act, and ss. 5.2 and 5.3 of the Federal Courts Act). There are Judicial Advisory Committees for each province and territory that review applications and recommend long lists of qualified candidates to the Minister of Justice.

The problems with the federal judicial appointments system that the case challenges are longstanding, and have been raised in the past, (see also here and here and here, and most provinces have the same problems with their appointment system), as follows:

  1. Canada’s federal judicial appointment system is just a self-enforced policy of the federal government that can be changed at any time. In contrast, in the UK and in most provinces the appointment system is enshrined in law so that a Cabinet can’t change it without introducing a public bill that is debated by the legislature and the public;
  2. The Minister of Justice and Cabinet appoint a majority of the seven members of each Judicial Advisory Committee. They appoint:
    • three of the members directly;
    • one from a list of nominees submitted by the Law Society of the province/territory;
    • one from a list of nominees submitted by the provincial or territorial chapter of the Canadian Bar Association;
    • one from a list of nominees submitted by the jurisdiction’s Attorney General, and;
    • then the chief judge of the jurisdiction chooses the last member of each committee

(ideally, the Minister and Cabinet should not be choosing any of the members of the committees) and the Minister alone chooses to appoint sitting judges to appeal courts (ideally, a fully independent committee should be recommending a short list of 1-3 sitting judges as candidates for promotion to appeal courts);

  1. The federal judicial advisory committees are appointed by the Minister and Cabinet to renewable two-year terms (ideally, even if the Minister and Cabinet members are removed from appointing any of the committee members (as recommended above in #2) the terms should not be renewable, to ensure regular turnover of committee members);
  1. Each committee submits a long list of candidates, which gives the Minister a lot of leeway to appoint whomever s/he wants (ideally, the committees should submit only 1-3 candidates for each open judge position, as in Ontario, Quebec and the UK), and;
  1. Before making the final choice, the Minister shares each list of candidates with Cabinet ministers and ruling party MPs, and also ruling party officials, from the province or territory (ideally, the Minister should be prohibited from sharing the list with anyone).