Second Opinion: Appointing judges in a free and democratic society

The federal government’s peremptory changes to the judicial appointment process undermine principles now considered fundamental to liberal democratic governance, including the supreme legal status of the constitutional framework, independence of the judiciary, and the protection of a full range of fundamental rights and freedoms.

The Conservative government reads the appointing power set out in s. 96 of our Constitution as a grant of plenary power to the government of the day. It thus dismisses practices developed to insulate the justice system from the policy preferences of temporarily elected governments as well as partisan considerations.

The British model we inherited and adapted does not support this approach to judicial appointment. Moreover, recent changes to the appointment process in the U.K., other liberal democracies, and some of our provinces repudiate it.

Vic Toews and Rob Nicholson, the former and current justice ministers, met the outrage that their proposals precipitated with the assurance that nothing much had changed. After some prevarication, Prime Minister Stephen Harper acknowledged his intention to use the appointing power to forward his law-and-order agenda.

To this end, the government has undermined the purpose and function of the judicial advisory committees. While these committees did not (yet) fully engage the relevant constitutional principles, the Conservatives seem willing to jettison these principles altogether. Why?

The government said that it added one seat to the existing seven on the judicial appointments committee to remedy the lack of “representation” of “the law enforcement community.” The government had three at-large seats it could have informally used for this purpose, however.

The appointees to date suggest the significance of this change. They include high-ranking members of police associations, who have promoted the Conservatives’ law-and-order policies, rather than high-ranking police officials, such as the chief of police of a city or province, who have not.

The extra seat polarizes the committees and undermines merit assessment. The new voting rules accentuate that effect.

The judge who chairs the committee now votes only to break a tie. In result, the government appointees outnumber the appointees designated to assure merit assessment, i.e., those named by the Canadian Bar Association, the provincial or territorial law society, and the provincial or territorial chief justice. Those members bring to the table the capacity to evaluate the specific talent, expertise, dedication, experience, and aptitude for adjudication of the applicants.

The deletion of the “highly recommended” ranking further undermines merit assessment. Nicholson considered this ranking flawed because it privileged lawyers from bigger cities and larger law firms.

Where Nicholson saw a distortion, another observer might discern the probability that these lawyers could demonstrate their mastery of the areas of law at the level of complexity as befits an s. 96 appointee.
What is there to learn from these developments?

While the Conservatives celebrate the supremacy of Parliament over the courts and decry the judicial “activism” that purportedly usurps legislative determination of public policy, they have here undermined full legislative deliberation on fundamental concerns and disregarded the work of past parliamentary committees as well as the opinions of a wide range of experts and stakeholders.

A minority government unable to date to enact its criminal-law agenda has invoked executive power to forward that agenda, even at the cost of undermining a procedure that forwarded important constitutional principles. Judicial appointment committees that are not expert, independent, and non-partisan cannot provide us with the highest calibre of judges.

The government’s handling of the judicial appointment issue pits what it calls a “private club of judges and lawyers” against safe communities and victims’ rights. This polarization oversimplifies complex questions that lie at the foundation of our system of criminal justice, indeed our entire system of justice. It associates constitutionally protected rights and freedoms with criminals, terrible crimes, and danger to our persons.

In our constitutional system, the federal government enacts the criminal law, which the provinces administer. The police and the prosecutors stand on one side of the courtroom and the accused and defence counsel stand on the other.

An independent and impartial judge presides. On occasion, that judge is an s. 96 appointee. That judge will, from time to time, adjudicate upon a wide range of civil law questions, often over decades, as governments come and go.

Everyone whose interests might some day come before such a court should support the appointment of judges who have passed through an independent, fully informed, and merit-based process.

Lorraine E. Weinrib is a professor at the Faculty of Law, University of Toronto.

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