Canada's Politicized Judicial Selection Process

"Everything else about the appointing process is left to the discretion of the appointing Cabinet, and it remains shrouded in vagueness, and unsubstantiated rumour and gossip." - Professor Zeigert, 1985.

The process with which the Canadian federal government selects judges has been under scrutiny the last few days following the controversial policies of Stephen Harper to try and create a 'tough on crime' ideology in the courts of Canada.

Many persons have both accused Harper of politicizing the selection process, ruining judicial Independence and creating a scenario where rule of law no longer exists. In this discussion, I will attempt to counter each point based on historical context, political theory and law. Afterwards there is a discussion on possible models for Canada and what potential Canada has for progression of judicial independence.

Politicizing the Selection Process
Since the Constitutional Act of 1867, appointing of judges in the upper courts has been the sole prerogative of the executive branch of power, the Governor General, in whom they divest the power to the Prime Minister and the Minister of Justice. Prior to 1967 there was no set process used within the judicial system for recommendation or selection. Not to surprisingly, the Canadian Bar Association found that in the 1950s and 60s most appointed judges were supporters of the the party in power at the time (CBA, 1985).

In 1967 the CBA established the National Committee on Judiciary, a committee intended on evaluating potential judges from within the judicial and legal system, on behalf of the Minister of Justice. But since the Minister of Justice was performing the original shortlisting the selection process was still heavily partisan, eventually erupting with the Trudeau and Turner era of mass cronyism and patronage appointees.

All of this led to the McElvy Committee, which indicated that patronism was abundant and that reform was required, and also partially led to the fall of Trudeau and Turner era and the rise of Mulroney.

In 1988 Mulroney's government made meaningful contribution when he introduced a process whereby potential judges applied and were screened by a committee, compromised of:
-a local CBA member,
-a rep of the chief justice of the province,
-a rep of the attorney general,
-three reps of the federal minister of justice,
-and a non-voting member of the office of the minister of justice.

Originally this process was used for provincial court appointments, in 2004 Paul Martin extended it to selection of judges for the supreme court (CBA, 2004). Prior to 2004 there was no committee system in place for the supreme court!

Ultimately though the end decision always has and most likely will reside with the Minister of Justice and the Prime Minister - who are free to appoint candidates, recommended or not, on the list or not.

So the question is - what has been the impact of this change in process to include a an initial committee review structure outside of the legislature? Did this change in selection de-politicize and remove partisanship from the judicial selection process? Did this change result in better judges?

Three major research projects answer 'no' to the question of partisanship. All three based on matching party donations to judicial appointment found a clear pattern of partisanship. On one extreme the Ottawa Citizen reported the Liberals as nominating judges who had made donations 60% of the time at the lowest extreme draft research by Ridell found from 1989 to 2003 that 32% of nominations were connected to party donours. In addition there is the accusation of Benoit Corbeil during the Gomery Enquiry, claiming that Quebec lawyers were appointed based on campaigning for the Liberal party.

Some may argue that partisanship is inherit in the system. This would force us to perform comparison to other Commonwealth nations. Sir Robert Megarry argues that patronage was non-existent after 1950 in Britian, and the recent change to a completely non-governmental judicial selection committee effectively eliminates the possibility. Malleson and Roberts highlight patronage as an issue in Canada but not in either of New Zealand or Australia in a comparative study of appointees.

Ultimately, in a historical context, Canada has been fairly poor in its process of judicial selection.

Now lets take Stephen Harpers proposed change in that historical context.

Harper has included police in the committee that reviews potential judicial appointments. His list of potential police reviewers are, as reported by the media, to largely consist of Conservative supporters.

Ultimately the partisanship of the committee does not matter because it is the minister of justice and prime minister who make appointments. Harper could nominate 'tough on crime' judges without bias police being included on the committee. Therefore police being included on the committee has no impact on the politicization of a system that is already, intentionally, politicized, partisan and filled with patronage appointments.

Ruining Judicial Independence

In the historic case of Valente v. The Queen, the Supreme Court defined the notion of judicial independence as the following three core characteristics:
1. security of tenure,
2. financial security, and
3. administrative security.

The UN Special Rapporteur on Judicial Independence further expands independence to include the following tenants:

4. Independence of judiciary enshrined in the constitution or legislation.
5. Immunity
6. Accountability


Independence of Judiciary Enshrined
In Canada independence has been granted since the Constitution Act, 1867. These originally included right to tenure and right to salary determined by the Parliament. In 1982 the Charter spread independence through the criminal lower courts (i.e. federally related lower courts) as well as higher courts. Finally in 1997 the Supreme Court, in the Provincial Judges Reference indicated that independence was given in the original constitution act throughout all judges - including provincial civil law judges.

Security of Tenure
The Canadian Judicial Council is a self-regulating council which receives complaints and can direct committees to perform inquiries on a judges competency. If deemed incompetent the judge can be removed from office. Note that in Alberta Ralph Klein was famous for his "if we hired him, we should be able to fire him" comment and attempt to change provincial law, and breach security of tenure.

Financial Security
Every three years an independent commission is appointed by government to inquire into the adequacy of salaries.

Administrative
In Canada the courts have control over downstream budgets for court staff and other administrative functions.

Immunity
In Canada Judges are immune from civil and criminal law in respect of judicial decisions. For instance if a judge gave the death penalty they could not be tried for murder.

Accountability
Judges are accountable first and foremost to the rule of law. They must decide cases based on evidence and the law. With the exception of the highest appellate court all judgements as well as the manner in which they were conducted can be appealed. All judicial proceedings are conducted in open court under the scrutiny of the bar, the public and the press. Judgements are under scrutiny by courts of appeals, by other judges, the legal profession, academics and the press and public.

As shown above by the Canadian and UN defined notions of Judicial Independence, Harper's changes have no resultant impact on any of the key tenements of independence.

Rule of Law
John Adams' quote is my favourite definition of rule of law -
In the government of this commonwealth, the legislative department shall never exercise the executive and judicial powers or either of them: the executive shall never exercise the legislative and judicial powers, or either of them: the judicial shall never exercise the legislative and executive powers, or either of them: to the end it may be a government of laws and not of men.

Clearly adding police to the appointee review committee has no wherewithal in terms of creating a change in power between executive, legislative and judicial powers. The Prime Minister always has and most likely always will have full executive power over appointments. Whether or not his review committee suggests judges with a particular bias doesn't impact the division of power in the country.

Concluding & Going Forward
While in the past most appointments were made in-line with the general consensus and moderation of Canadian people - there is a strong history of partisanship in Canadian judicial selection process. Harper's changes to a committee that reviews potential appointees still have no bearing on actual selection.

Stronger arguments would be that Harper is committing judicial activism, as he is attempting to vote judges with a specific agenda in mind. But that is his democratic prerogative because of the power vested in him.

As stated in the Ethical Principles for Judges, the underlying code of ethics for judges in Canada:
“True impartiality does not require that the judge have no sympathies or opinions: it requires that the judge nevertheless be free to entertain and act upon different points of view with an open mind.” The judge’s fundamental obligation is to strive to be and to appear to be as impartial as is possible.

Professor Ziegel, a renown Canadian expert on Judicial independence, also intimates -
"…Supreme Court judges should not be clones of each other but should have varied background and experiences and should represent a spectrum of philosophical positions on the most pressing constitutional issues…"

So it is clear that Harper, in the future, will be appointing judges with a different frame of reference. But does that mean our system will become less independent or not under the rule of law? Clearly by the inherit definition of independence itself and the constitutional split in power.. it will not.

Ultimately the question will lay on the quality of the judges selected. Will Canada continue to appoint "high-quality" judges? Harper's current track record indicates so, but only the test of time provides proof.

Going Forward
There are various other systems available -
1. Keep the power in the executive
2. Switch the power to the legislature - the US style of Senate hearings
3. Switch the power to the electorate - US state style
4. Switch the power to the judiciary - now Britain style

Ultimately the question is do you believe in the need for democracy in the judiciary?

Professor Ratushny of the Ottawa Law School explains:
"It may be confusing then to refer to a perceived need to “democratize” appointments to the Supreme Court of Canada or to reduce the “democratic deficit” in the judiciary. The Supreme Court of Canada is not a “democratic” institution even though it is an essential institution within our democratic system under the rule of law. Its role is not to be democratic, but to be judicial. It is not elected by the public and it is not accountable to the public for the content of its decisions."

All the systems have strengths and weaknesses.
Electorate means judges have to pander towards the populous, and has generally been publically accepted as not desirable in Canada.
Executive means there may be a democratic deficit or partronism as visible in Canada.
Legislature means there will be messy scrutiny, as visible in the US system.
Judiciary is prone to oligarchism and generally bringing about a system of "old, white, christian" men as reported by Malleson in Britain.

Perhaps some balance can be found in new models - but for now there does not seem to be a ready answer for Canada's politicized judicial selection process.

Sources:
A Place Apart: Judicial Independence and Accountability in Canada M.L. Friedland
Sir Robert Megarry, 2002
Malleson & Russel, 2006
http://www.icclr.law.ubc.ca/Publications/Reports/RuleofLaw.pdf
http://www.cba.org/CBA/submissions/pdf/04-10-03-eng.pdf
http://www.cpsa-acsp.ca/papers-2006/Riddell.pdf
http://www.laws.qmul.ac.uk/staff/p_article/malleson_article.pdf
http://www.law-lib.utoronto.ca/conferences/judiciary/readings/confhearings.doc
CBCs Ideas on Judicial Activism, http://podcast.cbc.ca/mp3/ideas_20061113_1185.mp3