Lawsuit challenges federal judicial appointment process

The federal judicial appointment system is open to political influence, compromises the independence of the judiciary and violates the public’s Charter right to impartial courts, says a Federal Court lawsuit announced Monday.

The application, being brought by the non-profit organization Democracy Watch, challenges the federal government’s system for filling the federal courts, provincial Superior Courts and provincial Courts of Appeal. Leading the litigation is Wade Poziomka, a human rights, labour and employment lawyer at Ross & McBride LLP.

“It should be completely separate from the political process,” says Poziomka, who is also former chair of the Ontario Bar Association’s Constitutional, Civil Liberties and Human Rights Section. “That will instill confidence back into the judiciary from some people who may have lost it, who have concerns about the way that the appointment process currently works.”

“Our first choice is to work with federal politicians and other stakeholders to achieve this goal. If litigation is necessary however, Democracy Watch will argue the merits of its case before the Federal Court.”

The federal Minister of Justice wields too much power in the process, says Democracy Watch co-founder Duff Conacher. Each province and territory have a judicial appointment advisory committee which produces a list from which the Minister selects judges. But six members out of the committee of seven are chosen by the Minister; three are chosen directly, and another three are chosen from lists delivered by the province or territory’s Law Society, Bar Association chapter and Attorney General. The Chief Justice of the jurisdiction chooses the seventh. In Court of Appeal and Federal Court appointments, the Minister alone decides which sitting judge to elevate to the court.  

“So it's pretty easy for the Minister to choose ruling party supporters all the way through,” says Conacher, who is also a PhD student studying government ethics at the University of Ottawa.

“Hopefully this case will lead to key changes that will ensure the appointment process for judges across Canada is truly independent and merit based,” he says. “We're hoping to set a precedent that applies across the country. A lot of the systems across the country need to be changed.”

Conacher’s concerns were echoed on Nov. 6 by the Canadian Bar Association. The CBA called on a more transparent process “less open to manipulation.”

The lawsuit comes on the heels of a CBC report from October exposing political influence over judicial picks. CBC Radio-Canada obtained emails in which a political aide to the federal Justice Minister David Lametti complained of the Prime Minister’s Office playing an “overbearing role” in judicial appointment process and that “partisan considerations” were creating “potential for scandal.” Other sources confirmed the federal liberals were consulting with “cabinet ministers, Liberal MPs, plugged-in lawyers and Liberal officials” before making an appointment. For example, a Calgary lawyer and president of the Liberal Party’s Alberta branch gave input to the PMO on judicial nominations for that province, said the CBC.

Some of Canada’s provincial judicial appointment systems are preferable, says Conacher. In Ontario and Quebec, the cabinet is given a list of one-to-three and three names, respectively, from which to choose the judicial advisory committee members. In Manitoba, the Law Society, Bar Association chapter and Chief Justice select three members themselves, leaving cabinet out of it.

“Ideally, I don't see why politicians are appointing anybody on these committees,” says Conacher. “They're playing key law enforcement roles and quasi-judicial roles and the judiciary should be completely separated from the legislative and executive branch so that it's impartial and not subject to political influence.”

“But it will be a great improvement if… the minister would not select a majority of the members of the committees and the committees would send a shortlist of 1 to 3 candidates for each opening in the bench and the minister would be required to choose from that shortlist.”

As Law Times reported in Nov. 2019, Ontario Attorney General Doug Downey has taken the opposite view as Conacher and Democracy Watch. At a meeting of the Federation of Ontario Law Associations, Downey said adopting the federal judicial appointment system would be preferable given the amount of time it takes to fill a vacancy in Ontario.