In support of a process based on merit

The president of the Canadian Bar Association has written to party leaders in Parliament and justice critics to clarify his comments on judicial appointments, which he says have been mischaracterized in the House of Commons and in news reports. CBA president Brad Regehr states that he has not accused the government of interfering in the appointment process, nor has he suggested that the process has resulted in the appointment of unworthy candidates.

Regehr also points to leaks about applicants to the media as demeaning the selection process, unfairly tainting those who are appointed, and discouraging worthy candidates from applying.

"One of the things that really concerns me is the naming people who submitted their names in the belief that it was a confidential process, and all of a sudden their names are appearing in the media," Regehr told the CBA National. "It really bothers me that this happened. The potential impact on those individuals – their relationships with their clients, with their co-workers, with their firm – it was highly inappropriate."

In recent weeks, news stories based on those leaks have fuelled speculation that the government is appointing friends and donors of the party. Members of the Prime Minister's Office vet candidates who have been recommended to the Justice Minister by the Judicial Appointments Committees (JACs). They also consult with caucus members to learn if they have heard anything about those candidates that could potentially embarrass the government.

Justice Minister David Lametti stated in Question Period that the PMO has not directed any appointments, nor has it declined any of his recommendations.

According to Regehr, the current appointment process has improved compared to what it once was. His concern is that the process remains free of political interference.

"I understand that government … may do some additional vetting – I'm not unrealistic," says Regehr. "If there is an indication that a person's enrollment in a particular party or their financial support to a political party becomes a governing factor, that's of concern, because the idea should be that these judges are being appointed on merit, and that they are reflective of Canadian society."

Regehr reiterated that political involvement is an indicator of someone who is devoted to public service.

"It would be best if there could be some further affirmation that this is not the governing factor in the appointment of judges," says Regehr. "I will take those accusations in the House and allegations in the media with a grain of salt. I have a good relationship with Minister Lametti, and I have had a talk with him about this, and he has assured me that this is not the case."

In an emailed statement to CBA National Magazine, Lametti said he was pleased to read Regehr's letter.

"I share his concerns about the confidentiality of the process," Lametti stated. "Those who have chosen to leak the names of individuals who are seeking a judicial appointment are violating the privacy rights of those individuals as well as undermining public confidence in the appointments process. They may also be discouraging qualified applicants from applying."

Addressing Regehr's stated concerns about delays in filling vacancies on the JACs, which in turn delay filling vacancies on the bench, Lametti said the government has worked to reconstitute the JACs in jurisdictions where terms have expired. It has also reduced the number of vacancies nationally, he said.

"It is my responsibility to make recommendations to Cabinet for judicial appointments," said Lametti. "It is one of the most important tasks I have as Minister. I make my recommendations to Cabinet on the basis of merit and the needs of the particular court. I also believe that an effective bench is one which reflects the diversity of the country it serves, and I am proud of the progress we are making in appointing diverse candidates. More needs to be done, but we are on the right path."

Asked about the vetting by the PMO as a function of the appointment process, University of Waterloo political science professor Emmett Macfarlane says that our political system has rested on a set of executive prerogatives of appointments that provide a direct line of accountability for the appointment itself.

"Modernization of a lot of these processes have included establishing a bit of an independent filter, usually through these Judicial Advisory Committees, that have been set up for a lot of the Section 96 courts, and are probably a reasonable step to the extent that historically there was a lot of patronage in these appointments," says Macfarlane. "A degree of professionalization of the appointments process was reasonable."

Macfarlane says he is concerned by some of what has transpired over the past week. People have taken to the idea that an independent filter means the government and the prime minister should be cut out of the equation entirely.

"That's a bit of a naïve view about the nature of courts and the role of the judiciary in our system, in that we obviously want a judiciary staffed with people who can do their best to recognize their biases, but there's no such thing as an apolitical court," says Macfarlane. "In fact, the higher up the ladder you go, the more political the nature of the court's work gets."

Macfarlane says that having an elected official who must maintain Parliament's confidence and is responsible for selecting people appointed to our courts provides some measure of democratic accountability to the third branch of government.

"This is important – the quality of people appointed obviously matters, but the political nature of the role matters too," says Macfarlane. "That's not to say we slide off the opposite slope in that we should be talking about electing judges – very few people, rightly, in Canada want to go that route, but the reason that we should want that degree of political accountability is reflected in the nature of judicial decision-making, particularly in areas like constitutional and administrative law."