Jacob Ziegel, U. of T. faculty of law professor emeritus; photo by Paul Lawrence Click here to see full sized version.

Prime Minister Stephen Harper won widespread applause last month for his deft and quick handling of the appointment of Justice Marshall Rothstein to the Supreme Court of Canada and the Justice’s appearance before the House of Commons ad hoc committee before his nomination was confirmed.

The appointment and the hearing were easy victories for the Conservative government. The spadework had been done before the January national elections by the advisory committee established by Irwin Cotler, the outgoing minister of justice. All that was left to do for Prime Minister Harper was to pick one of the three candidates on the short list prepared by the committee. The novel element added by the government was to subject the Prime Minister’s nominee to public scrutiny and for this initiative the prime minister undoubtedly deserved much credit.

The real test, however, will be Mr Harper’s future handling of appointments to the other courts for which the federal government is responsible – the superior trial and appellate courts at the provincial level and the members of the Federal Court of Canada. These appointments, about 60 a year, are much sought after. They are very prestigious, offer security of tenure until age 75, pay a solid salary and come with a very attractive pension package.

Consequently, both Liberal and Conservative governments have used judicial appointments for patronage purpose since the earliest days of Confederation. The urgent question for Prime Minister Harper and his cabinet colleagues is whether they will be able to resist the enormous pressure that will be brought to bear on them to continue the tradition. After all, it will be argued, the Conservative troops have been in the political wilderness for the past 14 years and now deserve to enjoy the same privileges as their Liberal predecessors benefited from so handsomely during their long term of office.

However, the argument will not bear critical scrutiny and, by any measure, appointing party loyalists, friends, or the former partner  of a cabinet minister to judicial office because of these distinguishing considerations is a clear abuse of the appointive power.

It has been roundly condemned on numerous occasions by bar committees, the Canadian Bar Association, the Canadian Association of Law Teachers, and legal scholars and causes great mischief. It means that the best qualified candidates for a vacancy are being passed over for  a less qualified and sometimes seriously underqualified lawyer. We rightly insist that judges render their judgments without fear or favour once they are appointed, yet that objective is undermined at the outset if the appointees start their careers with the encumbrance of political patronage.

The solution is obvious and simple. In 1988, in response to strong criticisms of the existing system of appointments, the Mulroney administration established one or more so-called advisory committees in each province to advise the minister of justice, after examination of an applicant’s background,  whether the applicant for judicial office was qualified or or not qualified. With modest changes introduced during the Chrétien regime, this screening system still exists for most appointments by the federal government.  However, despite its misleading title, it is only a screening system. It does not ensure appointment of the best qualified candidates and does little to restrain patronage appointments. 

There are many party loyalists who have made the “recommended” list and other candidates who have won favour with the party apparachniks because they made a financial contribution to the party in power, as Canadian newspapers discovered last summer when they made enquiries during the Gomery hearings.  What is needed is a change in the advisory committees’ terms of reference so that the committees’ mandate will be to compile a short list of the best qualified candidates from which the minister of justice will be obliged to choose the successful candidate when a vacancy needs to be filled.

This is the system that is currently in use for the appointment of provincial court judges in most of the provinces, and it appears to be working well. An adaptation of the same system (though with some undesirable features) was used in the appointment of Justice Rothstein to the Supreme Court of Canada. Prime Minister Harper has said many times that he is committed to an accountable and transparent system of government and he has promised legislation to bring this about.

The challenge is for him to prove that the commitment applies as much to the appointment of judges as it does to the expenditure of public funds. To be sure, appointing judges involves much more than the expenditure of public funds, but if the involvement of public funds is one of the criteria of Prime Minister Harper’s commitment to open government it can be easily satisfied for judicial appointments as well. Each judicial appointment involves the expenditure of several million dollars during the judge’s term of office and for retirement benefits after the judge has retired.

If Prime Minister Harper does nothing more for the administration of justice than to remove political patronage from the appointment of Canada’s 900 or so superior court and appellate court judges and replaces it with a genuine merit based system, he will have earned the gratitude and admiration of future generation of Canadians and ensured himself a notable place in Canada’s legal history. Let’s hope he will rise to the challenge. 

Professor of Law Emeritus, University of Toronto. Professor Ziegel is a frequent commentator on Canadian judicial affairs.