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|Written By Kirsten McMahon - Law Times

VANCOUVER — The federal government will be moving forwardto improve the judicial-appointments process, following allegations of secrecyand bias within the system, says Minister of Justice Irwin Cotler.

Photo: Jared Adams/CBA.  Justice Minister Irwin Cotler says more information about the judicial appointments process will be made public in the future.
Photo: Jared Adams/CBA. Justice Minister Irwin Cotler says more information about the judicial appointments process will be made public in the future.
"I recognize that some legitimate concerns with the current process have been raised by members of the legal community and media commentators," Cotler said during his speech to the Canadian Bar Association last week. "I take these comments and expressions of concern very seriously. I have, in fact, said that though I believe the current process is sound in principle, I accept that it may be improved in practice."

Cotler said he sought the advice of chairs of provincial and territorial judicial advisory committees for feedback and suggestions for increasing the transparency and confidence in the process of appointing judges to superior- and appeal-level courts.

The initiatives include the development of a code of conduct, which will provide direction to all committee members and will govern the manner and content of the consultations.

This code will be made public, as well as the mandate letter and the guidelines that govern the advisory committee members' participation.

"This will provide a better and more detailed public appreciation of the way in which information with respect to the merit criteria is gathered and assessed by the committee members," he said. "It will also demonstrate the careful steps that are taken to preserve

confidentiality, which is central to the process."

Cotler said the commissioner for federal judicial affairs will publish a current list of the members of the appointment committees and information about applications for judicial office — including the total number of applications and the number who are recommended and highly recommended annually.

"I remain confident that, at a minimum, an improved public understanding of the judicial appointments committee processes will do much to dispel the criticism and innuendo that has been increasingly directed toward judges in the last few months."

Another hot topic involving judicial appointments during the justice minister's annual dialogue with members of the CBA counsel was the new Supreme Court appointment process, which will have its first run for the replacement of Justice Jack Major, who retires in December.

Cotler announced that advertisements will be placed in Prairie publications in an effort to encourage people to nominate candidates for the Western Canada vacancy left my Major's departure.

Supreme Court of Canada Chief Justice Beverley McLachlin said the appointments process appears to reflect both merit and preservation of judicial independence.

"To me, the sole concern should be to appoint individuals who embody the most valuable judicial qualities of competence, impartiality, empathy, and wisdom," she said. "From where I sit, the judiciary in Canada today meets these high standards. The committee system for vetting candidates the judiciary in each province has, on the whole, functioned well.

"Further reforms will be welcome if they enable us to improve on this excellent record."

Cotler reiterated that merit still remains the primary criteria for selection to the Supreme Court bench.

Access to justice and inadequate legal aid were also major themes of the CBA's conference.

Cotler said the federal government will try and find room in the next federal budget for a national civil legal program. While there are no specifics yet, he said the Department of Justice is currently working on a memorandum to cabinet.

"I will make a very effective case," said Cotler.

In June, the CBA launched a test case to establish a constitutional right to civil legal aid in British Columbia.

"The CBA has opted to pursue the litigation route out of a sense of profound frustration with cuts to legal aid that have resulted in a vacuum in access to justice for the poor in this province," said past CBA president Susan McGrath.

"While the courts are frequently asked to consider the right to legal counsel in individual cases, we believe this is the first systemic challenge to a legal aid program in Canada," she said.

The lack of civil legal aid and the limited availability of lawyers doing pro bono work has caused the amount of unrepresented litigants in court to rise at an alarming pace with serious repercussions for the public, said McLachlin.

"It would be facile and simplistic of me to attempt to tell you what I think the problems are," she said at a news conference in Vancouver. "It's not just a money problem. It's a complex problem that requires more than just a simplistic solution."

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