Editorial: Judicial appointment process a mess

With the federal government repeatedly decrying the number of unfilled jobs in this country due to skill shortages, it’s ironic that it seems to be taking its time filling some of the country’s top judicial vacancies, especially since there’s no shortage of qualified candidates.

The evidence is building that the government’s approach to judicial appointments is a mess. As Law Times reported last week, University of Ottawa Faculty of Law Prof. Adam Dodek has raised concerns about a “transparency” deficit in the process for nominating Supreme Court judges. It came amid reports the government had tried to stack the short list of potential candidates last year with several federal court judges during the process leading up to the now-failed nomination of Federal Court of Appeal Justice Marc Nadon. He was to replace justice Morris Fish following his retirement last summer, and the position sat vacant until this week’s express appointment of Justice Clément Gascon of the Quebec Court of Appeal to the post. Who knows what process the government will follow to fill the next looming vacancy at the top court?

Similarly, the government has left the position of Ontario’s top judge vacant since former chief justice Warren Winkler retired in December. It’s a long time for the post to sit empty and it’s not as if the government didn’t know Winkler’s retirement was coming. By comparison, it swiftly appointed Winkler to the job in June 2007 following former chief justice Roy McMurtry’s retirement that spring.

It all adds up to a haphazard process with what appears to be significant interference by the executive of the federal government. That may be the executive’s privilege, but it’s clear we deserve better. One reasonable approach came in comments from lawyer Bill Trudell in last week’s Law Times article on Supreme Court appointments. Trudell, who has sat on an appointment committee for judges in Ontario, says the federal government should adopt a similar apolitical protocol where it chooses a judge from a list given to it by the selection committee as opposed to the other way around. In that way, the government has nothing to do with the application, screening or interview processes, he noted.

The government wouldn’t like diluting its prerogative but it has unfortunately undermined its credibility through its more recent actions. With confidence in the judiciary of paramount concern, we need a more consistent and transparent process for naming our top judges.
Glenn Kauth

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