Howling at Harper.

• Author: DeCoste, F.C.
• Position: Judicial appointment process - Canada

In November 2006, the federal Executive moved to amend the processes--one cannot properly say rules that govern--associated with the exercise of its judicial appointment power. The then-standing process was, subsequent tinkering aside, the process installed by the Mulroney government in 1988. Under that scheme, persons seeking appointment to provincial or territorial Superior Courts or to the Federal Court were--and still are--required to submit applications to the Federal Office of Judicial Affairs, which then directs the applications to the Judicial Advisory Committee (JAC) in place in the jurisdiction, provincial or territorial, from which the applicant submitted.

There are presently twelve JACs across the country. Until the recent initiative, each was composed of seven members appointed by the federal Minister of Justice for three-year terms using the following calculus: one member was nominated by the provincial or territorial law society and another by the provincial or territorial branch of the Canadian Bar Association; a Superior Court judge was nominated by the provincial Chief Justice or territorial Senior Judge; a person (generally a non-lawyer) was nominated by the provincial Attorney-General or territorial Minister of Justice; and two non-lawyers and a lawyer--together termed "members at large"--were nominated by the federal Minister of Justice. Then as now, JACs are forbidden to act on their own to search for applicants and to interview or otherwise communicate with applicants. Instead they remain confined to in camera discussions of applicant merit assessed in light of three factors: the characteristics declared desirable by the Executive through the Office of Judicial Affairs; the formulaic dossiers required of applicants; and secret input from persons contacted, again formulaically, by the JAC. The outcome of this curious form of deliberation concerning appointment to public office was a recommendation in one of three directions to the Minister of Justice: a JAC could only utter that it was unable to recommend, that it was able to recommend, or that it was able to highly recommend an applicant for appointment. Then as now, the Minister is not bound to select from among the pool of recommended applicants; then as now, the Minister remains free to appoint whomever he or she wishes on whatever grounds he of she thinks proper or useful.

The Harper government's is an amendment in five parts. First, it has added a fourth member at large, namely, a nominee of the law enforcement community, and thereby has increased JAC membership to eight from seven. Second, it has eliminated the "highly recommend" alternative from among the utterances allowed to the JACs. Third, it has named judicial representatives as ex officio chairs of their respective JACs and removed from them the authority to vote on applications except when necessary to break a tic. Fourth, it has staggered the terms of appointment of JAC members. Fifth, as a pilot-project it has installed a new, five-member JAC to assess applications for appointment to the Tax Court of Canada. (1)

My concern in this comment is not the merit of these changes, since, in my view, the last two housekeeping measures possibly excepted, they are patently without merit. To be clear: they cure none of the constitutional diseases that afflicted the former regime; they are in consequence as fulsomely violative of the most basic norms of Rule of Law governance--namely, rule governance, transparency, and the separation of powers--as was the regime they amend; they too render the act of judicial appointment an act of Executive tyranny, of unbridled power plain and simple; and every bit as much as did the former protocol, they too taint root and limb the constitutional legitimacy and moral standing of the judicial branch.

I will not rehearse my arguments to these conclusions here. (2) I will but add that I think them entirely unavoidable. Any literate lawyer that sets his or her mind to the matter must, I believe, in good faith conclude that our system of appointing judges, including especially and most egregiously to the Supreme Court of Canada, is so offensive to the standards of transparency and divided authority required for limited and accountable government that it constitutes a continuing constitutional embarrassment.

What I wish instead briefly to explore is the public reaction of the legal community--judges especially but practising and academic lawyers as well--to the Harper government's initiative in this matter. My comments will not however be directed, at least not primarily, towards the substance of the reaction. Indeed, inasmuch as judges and academic and practising lawyers have criticized the new regime in defense of the ideological and political purity of the old regime, the substance of their criticism is risible and more warrants ridicule than analysis. My target rather is the bare fact the criticisms were made at all. That is important, I want to suggest, because it discloses that the Canadian legal community is afflicted by a wide-ranging constitutional immaturity and insolence, which arises from and expresses a deep and deadening cultural narcosis among a great many judges and lawyers. And those matters are in turn important because they compromise the community's status as steward of our constitutional tradition and patrimony and, with that, its performance of the obligations it owes the public, to whom and for whom it is responsible.

I shall attend first to the immaturity and insolence. Foremost here are our judges. The Canadian Judicial Council (CJC) was fast and first off the critical mark. After having been informed by then Minister of Justice and Attorney-General Vic Toews of the Executive's intention, the CJC, a creature of the federal Judges Act and chaired by Chief Justice McLachlin, issued a media release the day prior to Toews' first public pronouncement on the matter, calling upon the government to refrain from implementing the changes and instead "to initiate an immediate process of consultation on the proposed changes with the judiciary, Canadian Bar Association, the law societies and other interested parties." (3) This was necessary, the CJC declared, both "to protect the interests of all Canadians in an independent advisory process for judicial appointments" and in order to comport with "a well-established convention followed by all previous governments [all, save one of which, it must be noted, were Liberal Party governments] since the inception of the committees." (4) When on 10 November 2006 Toews issued a media release announcing the changes and the Executive's...