Many excellent appointments have been made to the provincial superior courts, the courts of appeal and the federal courts in the last several decades. The work of Canada's courts is, in general, widely respected both at home and abroad. The Sub-Committee does not want to interfere with, or disparage in any way, the high regard in which Canadian courts are held.
There is, however, an issue that must be addressed in such a way as to reinforce the esteem in which many hold the judiciary in Canada. The process by which judges are appointed by the federal government is largely unknown and, therefore, subject to the perception that it may be open to misuse. The Sub-Committee was asked to address the issue of the role political orientation or partisanship may play in the judicial appointments process. It was asked to develop proposals to render the appointments process more transparent so as to ensure that political partisanship does not play an inappropriate role and the judiciary in Canada is of the highest possible quality. In this regard, the Sub-Committee welcomes the making public of the identity of appointing committee members as well as the Code of Conduct and Guidelines by which they operate.
Unfortunately, the Sub-Committee did not have sufficient time to develop comprehensive proposals for reforming the judicial appointments process. A number of important issues were not fully discussed. In addition, a number of key witnesses had yet to be heard. The Sub-Committee would have liked to hear, in particular, from witnesses to discuss how the judicial appointments process worked in the provinces in Canada and from those able to discuss the changes that have been made to the appointments process in England and South Africa.
While the Sub-Committee was not able to complete a final report, its members did come to a consensus on a number of issues. It is accepted by the Sub-committee that merit-based appointments should be paramount over all other considerations.
We agreed on the need for change. No witness heard, or brief received, argued that Canada should continue with the status quo. While prescriptions for reforming the system varied, the feeling that some type of change was needed was universal.
The members of the Sub-Committee also agreed upon the need to limit the recommendations for judicial postings possibly to a short list of three to five candidates, but further study needs to be done. This is in contrast to the current system whereby the government may choose from a large pool of candidates. A short list will provide a more considered recommendation to the Minister of Justice of the persons who would be best suited for a particular judicial opening. It would also serve to limit the very wide discretion currently exercised by the Minister of Justice and thereby reduce any impression that judicial appointments were influenced by political considerations.
There was also a consensus on the desirability of conducting interviews of candidates for judicial office. There appeared to be no convincing rationale as to why candidates for such an important position would not be interviewed. The interviews would be conducted in a confidential manner to ensure a full and frank exchange of views. It is felt that interviews would be a good means of determining the character of a potential judge, as well as his or her professional expertise. Interviews would also provide candidates with an opportunity to respond to any adverse commentary that had been offered about their candidacy.
The Sub-Committee members also agreed that the Minister of Justice should consult the Chief Justice of the jurisdiction in question on the needs of his or her court. The Sub-Committee heard evidence on the difficulty of conducting trials in the official language of a litigant's choice in all parts of Canada. There was also discussion of the need, at times, to appoint judges with a particular expertise. Both of these concerns may be addressed by a Minister of Justice suggesting to an appointing committee the preferred criteria for a new judge. Thus, a Minister may indicate that there is a need for a bilingual judge in a particular area so that the obligation to furnish legal services in both official languages can be met. While gender and ethno-cultural diversity are important considerations, these considerations should always be subject to the merit principle. Outside of this context, it would be exceptional that a Minister of Justice would express a preference for a particular type of judge.
Finally, a consensus was reached upon the need for a more open and transparent system of advertising of judicial vacancies. It is anticipated that these advertisements would specify the jurisdiction in which a judge will be required to sit as well as any specific requirements of the position. A public advertisement should generate the broadest possible pool of candidates willing to fulfill a specific post. From the response to such advertising a short list of candidates may be developed.
The Sub-Committee recommends that the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness be authorized by the House of Commons in the First Session of the 39th Parliament to study as a priority the process for appointment to the federal judiciary.
The Sub-Committee recommends that the evidence and documentation received by the Sub-Committee during the First Session of the 38th Parliament in relation to its study of the process of appointment to the federal judiciary (Meetings Nos. 2-13) be deemed received by the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness in the First Session of the 39th Parliament.
John Maloney, M.P.