Federation of Law Societies president, William Goodridge Click here to see full sized version.

The Conservative government’s plan to unilaterally expand its discretion to pick judges has been condemned by the organized Bench and Bar, who say they fear an onslaught of partisan and ideological appointments that could impair Canada’s international reputation for an impartial judiciary.

Justice Minister Vic Toews announced in a terse press release Nov. 10 that he is “moving forward” with significant changes to the federal judicial appointments advisory committees (JACS), which include giving police a vote in confidentially vetting applicants for the Bench while disenfranchising the judiciary, and eliminating the committees’ mandate to identify the best judicial candidates via a “highly recommended” rating.

“I think it was appropriate to come out swinging on this one because the whole structure of an impartial nominating body [for federal judges] has been eviscerated,” said Justice Colin McKinnon of Ottawa, outgoing president of the Ontario Superior Court Judges Association.

Justice McKinnon praised the Harper government for appointing nine “highly capable” judges in Ontario last month – lawyers who were rated as qualified under the existing JAC system which was first established by the Conservatives in 1989.

But “the sense is that the government is trying to structure a nomination process that will permit them to appoint judges who are sympathetic to this government and its agenda,” Justice McKinnon told The Lawyers Weekly.

Added William Goodridge of St. John’s, president of the Federation of Law Societies, “if the [Justice] Minister wants to inject law enforcement representation on the committee it does seem to suggest that considerations other than merit are at play, and that’s troubling. I think that every mechanism that we can put in place to ensure that the judiciary and judicial appointment process are independent from the state and particular agendas and special interest groups, is healthy for democracy, and the initiative by the Minister is a move against that direction.”

Liberal justice critic Sue Barnes told The Lawyers Weekly the Harper government’s initiative reflects a negative attitude towards the judiciary that is evident in other contexts, such as its creation of more mandatory minimum prison sentences and its rejection of pay increases recommended by an independent judicial salary commission.
“When you come at this particular [justice] ministry with an ideologically-driven, as opposed to an evidence-based, approach, it’s not useful for our system of justice,” said Barnes, a London, Ont. lawyer. “There seems to be a pattern of wanting to curb the independence and discretion of the judiciary which I believe has served Canada very well.”

Ultimately, the legal profession would reluctantly withdraw its participation in the JACs if the government relegates them to mere window-dressing for objectionable appointments, Justice McKinnon believes. “If that were to prove to be the case, then I think obviously the judges and the lawyers would resign,” he opined. “But in the final analysis, it’s better to be in the room than outside the room, even if the structure is imperfect, that would be my view.”

To add insult to injury from the legal profession’s perspective, the government’s surprise move came without prior consultation with the federal judiciary, provincial law societies or Canadian Bar Association (CBA), each of which sends one representative to the 16, seven-person JACS across the land.

That prompted a swift and unprecedented public rebuke from the highest judicial leadership Nov. 9, two days after word of the impending changes leaked out in remarks Toews made to the Winnipeg Free Press.

“The Canadian Judicial Council is concerned that these changes, if made, will compromise the independence of the advisory committees,” admonished  the council of 39 chief and associate chief justices in a hastily released press release. “The Council urges the government to maintain the status quo and refrain from implementing the changes in order to allow meaningful consultation to take place.”

Added the Council’s chair, Supreme Court of Canada Chief Justice Beverley McLachlin, “we call upon the Minister [of Justice] to initiate an immediate process of consultation on the proposed changes with the judiciary, CBA, the law societies and other interested parties.” The Council also protested that the Harper government’s failure to consult with those key players “is contrary to a well-established convention followed by all previous governments since the inception of the committees.”

The Federation of Law Societies and the CBA echoed the top judges’ complaint.

The two-year terms of the 16 JACs across Canada expired Oct. 31. Under theirt structure, four of the seven members were independent of the justice minister: one judge (who chairs) chosen by the provincial chief justice, and one representative each from the provincial or territorial law society, the provincial or territorial attorney general and the CBA.

The three remaining lay members, who are supposed to bring the wider community’s perspectives to bear in rating applicants for the Bench, are chosen by the justice minister.

The newly announced structure would expand the JACs’ membership to eight, with the three at-large members to be chosen by the justice minister, and a new fourth spot to be reserved for an unspecified “representative of the law enforcement community” appointed by the minister.

That would effectively allow the government, and a swing vote belonging to police, to control the committee, since under Toews’s plan the judicial chair would no longer be allowed to vote if the members disagreed over whether an applicant was “recommended” or not recommended for the Bench.

“The CBA believes that the decision of these committees should continue to be reached by consensus,” MacCarthy said. “But if a vote is required, these changes would potentially ‘stack the deck’ in favour of the minister’s at- large appointees. These changes could give the at-large appointments virtual veto power.”

The government has indicated to law groups that it wants to implement the changes by the end of the year. They can be effected by administrative fiat since the JACS have no independent statutory basis and are purely creatures of the justice minister.

“What is objectionable is not that the views of law enforcement officials are being canvassed, since those views could come from one or more of the Minister’s three at-large appointments, but that any specific community or special interest should hold the potentially deciding vote in determining who is or is not qualified to be a federal judge,” Goodridge wrote Toews Nov. 13 on behalf of the umbrella body for the country’s 14 legal regulators.

“That a specific community or special interest should be represented on the JACs leads one to believe that candidates for the judiciary are being evaluated for reasons other than merit – reason which speak more to the likelihood or not of a candidate’s judicial decisions corresponding to the general views or desired outcomes of the community or group in question,” Goodridge wrote.