The government is planning changes to the composition and operation of federal judicial advisory committees, a move that has already been denounced by members of the bar and the judiciary - not just because of the changes themselves, but because of a lack of consultation with stakeholders.
In a recent announcement, Federal Justice Minister Vic Toews confirmed that the structure of judicial advisory committees is set to change. The Department of Justice confirmed that the changes will be implemented soon, but could not offer any information as to a time line.
Judicial advisory committees are responsible for assessing the qualifications of lawyers who apply for federal judicial appointments and for recommending candidates to the minister. Under the current system, the committees are made up of seven appointees, including a judicial representative, one from the attorney general, one from the law society, one from the Canadian Bar Association, and three ministerial appointments.
With the proposed changes, a member of the law enforcement community would also join the committee as an additional ministerial appointment, bringing the total number of committee members to eight.
However, both the judicial and legal communities noted that there was inadequate consultation prior to the changes being announced.
Following the announcement, CBA president Parker MacCarthy of Nanaimo, B.C., firm Ramsay Lampman Rhodes commented: “We have been a participant in the process since the mid-’80s and the system, in our view, seems to work very well.
“We believe there should be, on something where there’s going to be such a fundamental change being implemented by the minister, that we thought that there should be proper consultation with all the relevant stakeholders and some opportunity to discuss some of these proposed changes,” he told Law Times.
In a recent statement, Chief Justice of Canada and chairwoman of the Canadian Judicial Council Beverley McLachlin called on the minister to initiate consultations on the changes with the judiciary, the CBA, law societies, and any other interested parties.
“The council urges the government to maintain the status quo and refrain from implementing the changes in order to allow meaningful consultation to take place,” said McLachlin.
Norman Sabourin, executive director and general counsel for the Canadian Judicial Council told Law Times that “without having a discussion on what exactly the changes are supposed to achieve and without thinking through possible alternatives, its very hard to support them and there are a lot of stakeholders involved.”
In terms of the changes themselves, MacCarthy said: “I think there’s a major concern about the perception that this may look as if its an attempt to kind of ‘stack the deck’ in terms of how the appointments are going to be made.
“As part of the change, the judicial appointee doesn’t have a vote unless there is a tie and I think the concern we have is this seems to be a clear signal that we’re going to be getting away from the way that these committees operate,” MacCarthy added.
He said the committees have traditionally operated on a consensus basis.
“What appears to be taking place here is an opportunity to increase the number, if you like, of at-large appointments that the minister makes and thereby, if it comes down to block voting, the minister will now have in his hand, four people who he has appointed on an at-large basis who will, of course, outnumber the other people on the committee,” he said.
He said people may interpret these committees as now being less than objective and that could undermine the credibility of the committees and may be viewed as being more politicized.
“Part of the package also is the appointment of the fourth person at-large, will be from a very defined constituency, which the minister has indicated is the law enforcement community,” said MacCarthy.
He added that the CBA’s concern is that the other appointees are coming from a very broad base rather than a defined perspective and that there is a broader perspective that should be taken into account.
Other proposed changes include allowing committees to either recommend or not recommend candidates. At the moment, judicial advisory committees can either recommend, highly recommend, or not recommend a candidate, which the government said “led to wide inconsistencies between the various [judicial appointment committees] in the types of recommendations coming forward.”
The Justice minister is also planning to stagger the terms of the committees, rather than having them expire at the same time across Canada.
As part of the changes, a pilot project involving a five-member judicial advisory committee looking at candidates for the Tax Court of Canada will also be created, which Toews has said is “designed in particular as a means to recommend more quality women candidates for this court.”
Sabourin noted that the CJC also has a couple of concerns with the changes, the first being the addition of the eighth member to the committees. The second “is the suggestion that there should not be a distinction between highly recommended and recommended candidates” and without consultation its hard to know if it makes sense.
“The council hopes the minister will engage not only members of the judiciary but attorneys general, members of the law societies, CBA, that’s what’s always been done since 1988.
There’s an important reason for that, we believe, and its that the committees have to be able to work independently, representing a very broad range of views and by consulting with the various stakeholders, the ministers in the past have always been able to come up with a model that met with consensus among stakeholders and this is not happening today,” said Sabourin.
“In this case, I think on something as fundamentally important to our judicial system and to the rule of law, the consultation that has been offered is totally inadequate,” said MacCarthy.
