Ottawa — When the federal government announced that it was filling 24 judicial vacancies on Oct. 20, it only filled about a third of the vacancies across the country.
Furthermore, it announced changes to the Judicial Advisory Committees, disbanding existing ones in order to rebuild them so that they won’t be able to consider new appointments until 2017 at the earliest, leaving questions as to why it took so long to announce these changes. Justin Trudeau was elected in October 2015, and the announcement comes a year later.
“Why would it have taken a year to come up with?” asks Lorne Sossin, dean of Osgoode Hall Law School. “The changes are welcome but modest. Many expected something a bit more bold, like a move closer to the Ontario Judicial Advisory Committee model, which itself conducts interviews, has a rigorous outreach campaign, and creates a slate of the top three that then goes to the attorney general to select from.”
The announced revisions to the advisory committees roll back the changes that the previous Conservative government made in 2006, which removed the ability of the committees to offer “highly recommended” evaluations as opposed to just “recommended” or not, and ensured that there was always a member of law enforcement on each committee. The new committee process restores the previous recommendation scale, seen as a way of giving the process more independence, and removes the permanent police presence on the committees, and will be reconstituted to better reflect diversity.
There are 17 JACs across the country, representing every province and territory as well as the Federal Court and Tax Court. Each committee save that for the Tax Court is comprised of seven members, including a nominee from the provincial or territorial law society; a nominee of the provincial or territorial branch of the Canadian Bar Association; a judge nominated by the Chief Justice of the province or by the senior judge of the territory; a nominee of the provincial attorney general or territorial Minister of Justice; and three nominees from the federal government representing the general public.
“The purpose of the new judicial advisory committee is to open up the process to be more public and more transparent and to ensure that we are making a concerted effort to ensure that there is diversity on the bench so Canadians can see themselves in terms of the judges they see,” Justice Minister Jody Wilson-Raybould told MPs in Question Period in the House of Commons on Oct. 24.
Stephen Mullings, president of the Toronto Lawyers Association and partner with Dutton Brock LLP, says reforming the JACs is “going to cause a further delay with filling the existing vacancies.”
“One of the things that is troublesome for us in Toronto is that we have these vacancies to begin with, but even if we fill the vacancies, it won’t be enough because we’ve outgrown our judicial resources long ago, and we need to increase the complement,” he says. “The immediate concern is get those vacancies filled, and it sounds to me like we’re going to be waiting until mid-2017.”
Canadian Bar Association president René Basque, a partner with Actus Law Droit in Moncton, says the association “agrees with the reinstatement of the ‘highly recommended’ category for judicial candidates as a way of denoting truly exceptional candidates.”
“We are also happy that voting on Judicial Advisory Committees has been rebalanced so that the majority of members will be independent of the government,” says Basque. “We welcome the move toward transparency and openness in selecting the general public members of the JACs, and in requiring people to complete a questionnaire when they apply for appointments.”
Basque’s praise is tempered when he points out the need to fill the remaining 40 vacancies quickly, because of delays in the court system.
The government is accepting applications and nominations for the new committees until Nov. 17, which means that it will not be evaluating new judicial nominations until 2017.
Removing the police presence from the JACs is irksome particularly to Conservative MPs and senators, who saw their contributions as valuable.
“Nobody is in greater contact on a daily basis with people involved in the law than our law enforcement agencies,” says former attorney general Rob Nicholson, who is currently the Conservative justice critic and MP for Niagara Falls, Ont. “They did a good job and I’m sorry they’re being taken off.”
That justification does bother critics of police inclusion like Sossin.
Police inclusion “bought into this notion that judges needed to be tougher on crime and criminals, which is, of course, the role for government in passing legislation,” says Sossin.
“To put law enforcement there seemed to imply that we wanted to have judges with a concern to law enforcement, and it’s not clear why we would want that in a body that we created to be an accountability check. Law enforcement has the guns and the power — it’s the court that has to be the bulwark for the rule of law and the limits of that power.”
The reconstituting of the committees to reflect greater diversity does have its proponents, even if it causes delays in filling the remaining vacancies.
“We have very few minority judges in all courts across the country, and it’s especially not acceptable in B.C. where I come from, because we hardly have any judges of colour,” says Liberal Senator Mobina Jaffer, a lawyer with Dohm Jaffer Jeraj in British Columbia since 1978.
Jaffer was the vice-chairwoman of the Senate Legal and Constitutional Affairs committee when it began its study on court delays, and she remains on the committee currently.
“Over the years, people kept saying no, no, no, so people stopped applying. This is the same thing that happened with women — they stopped applying, then the chief justice [of B.C.] set up a proactive way to bring people in,” she says.
“I have the greatest respect for the judicial committees, but you only select people you know well. If you’re out of the box, they don’t select you.”
Jaffer says that she respects what Wilson-Raybould is doing by reforming the JACs in order to get them to give her better names.
“I understand that we need to work on court delays, but I also understand that we need to change the face of courts,” Jaffer says. “Why? It’s not just because it’s a person of colour, but if the bench reflects the community, there is respect for the bench.”
As part of its announced changes, the government did commit to collect and publish statistics on judicial applications and appointees.
“A growing number of lawyers are women and members of racialized and other minority groups, yet their numbers are not reflected on the courts,” says Basque. “Open data is a good first step to diversity. We look forward to working with the minister to achieve our shared goal of increasing diversity on the bench.”