Foreword: appointment of section 96 judges.

• Author: McKelvey, E. Neil

The genesis of the present method of appointing s. 96 judges was the 1985 Canadian Bar Association Committee on the Appointment of Judges in Canada, of which I was chairman, which was approved by the council of the CBA in 1986. (1) It was the first comprehensive study of the subject.

The committee first identified, for its guidance, the following qualities required of those considered for judicial appointments:

* Personal competence and overall merit.

* High moral character.

* Human qualities: sympathy, generosity, charity, patience.

* Experience in the law.

* Intellectual ability and good judgment.

* Good health and good work habits.

* Bilingualism, if required by the nature of the post.

The CBA committee interviewed all present and former Ministers of Justice, provincial Attorneys General, Chief Justices, and many leaders of the profession, among others, and considered the appointment practices in other countries. It obtained a reasonably complete cross-section of opinion on how judges should be appointed. The objective was to identify weaknesses in the system used at the time, and several recommendations for improvement were made.

In its deliberations, the CBA committee considered the practice in 30 American state courts of electing judges. This idea was rejected out of hand at the first meeting of the committee. Many well-qualified lawyers would shun this process because of a distaste for campaigning, and there is a precariousness in tenure. The electoral process compromises the necessary independence of judges. There was a case in Texas where one of the lawyers made a substantial contribution to the election campaign of a judge before whom the lawyer was appearing; the lawyer won the case. Although this occurred after the committee reported, the experience confirmed that the committee made the correct decision.

The CBA committee also considered the American practice where, at the confirmation stage, nominees are sometimes subjected to intensive grilling by the Senate Judiciary Committee concerning their views on current social and political questions, and possible conflicts of interest. Public senatorial prying into a candidate's private affairs can sometimes amount to a virtual inquisition. Moreover, there is no assurance that a candidate, once appointed, will follow the comments and opinions expressed at the hearing. This practice reduces the number of qualified lawyers because many are not willing to expose themselves to that type of questioning.

The CBA committee made inquiries to determine the extent to which political appointments had entered into the system. It was found that in some provinces political affiliation was a minor factor, in some it was a dominant factor, and in others it was in between. The CBA committee was advised by an American colleague, in a state where advisory committees existed, that the advisory committee system did not eliminate political considerations, but ensured that political appointees were qualified. It should be noted that the fact that a...