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DWatch in Federal Court today challenging constitutionality of too-political federal judicial appointments and promotions system

Trudeau Cabinet still trying to stop court from seeing government emails reported on in La Presse, and evidence that lawyer associations, law professors, experts and media all think the Liberals’ appointment process is too political

Case alleges Trudeau Liberal’s consultation with only Liberals across Canada taints appointments with partisan bias that violates independence of courts and public’s Charter right to courts that appear, and are, impartial

Monday, November 7, 2022

TORONTO – Today, Democracy Watch is in Federal Court in Toronto challenging the federal government’s too-political, unconstitutional system for appointing judges to the federal courts and all provincial superior courts and courts of appeal, and promoting judges within those courts. Ross & McBride LLP is representing Democracy Watch and its co-founder Duff Conacher in the case – click here to see DWatch’s arguments. The case is being heard in Courtroom 4C at the Federal Court at 180 Queen St. W., Toronto, and can be watched on Zoom by contacting the Clerk at: 416-976-3356.

Details about how the Minister of Justice only secretly consults with officials from Liberal Party not other parties, and only checks the Liberal Party donor database, when reviewing the long lists of candidates for judicial appointments submitted by advisory committees made up of people chosen mostly by the Minister have been confirmed by whistleblowers disclosing internal government emails to the Globe and Mail and CBC and Radio-Canada and La Presse. In addition, the appointments system has been shown to favour Liberal donors.

Democracy Watch has also submitted to the court public letters and articles that lawyer associations (including the Canadian Bar Association), law professors, lawyers, experts and media have produced in the last few years expressing their concerns about how political the federal judicial appointment is, and how that undermines the public’s confidence in the independence and impartiality of the judiciary. As well, in April 2020, 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.

There are also concerns that the partisan nature of the appointment process may be inhibiting the appointment of judges that reflect Canada’s diversity. In June 2020, the Chief Justice of the Supreme Court of Canada expressed the need for “our courts, including our highest court, to reflect the diversity of Canadians.” In September 2020, 36 lawyers associations, legal clinics and advocacy groups called for changes to the appointment process, as did the Canadian Bar Association, to increase the appointment of more Black, Indigenous and People of Colour (BIPOC) judges.

All this evidence shows clearly that the federal appointments system for judges 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.

In December 2021, the Federal Court rejected (PDF) the Trudeau Cabinet’s first attempt to have almost all this key evidence thrown out in its case. Department of Justice lawyers are still asking the Federal Court to ignore almost all of the evidence that Democracy Watch filed in a December 2020 affidavit (PDF) and in a second affidavit (PDF) about internal government emails reported on in La Presse on October 31, 2020 (redacted parts of the second affidavit will be considered confidentially by the Federal Court under an order of the court (PDF).

“The current federal judicial appointment system is open to too much political interference by the ruling party, which violates the constitutionally guaranteed 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, changes that have already been made in the UK and Quebec, that will help ensure the appointment process for judges across Canada is truly independent and merit-based.”

The constitutional guarantee of the independence of the courts has been upheld in several court rulings on the measures in Part VII of the Constitution and the unwritten constitutional principle of judicial independence. And sections 7, 11(d) (and, indirectly, 24(1)) of the Charter have been applied in rulings to ensure impartial court hearings.

The appointment process for the federal and provincial superior and appeal 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 actual court of last resort.

The problems are longstanding, and have been raised in the past: unlike in the UK and Quebec, 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 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 for details).

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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