Collin May: Canadian judges have become too political

Photo by Luke Hendry/The Belleville Intelligencer/Postmedia Network

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In a recent statement, Bianca Kratt, president of the Canadian Bar Association (CBA), warned journalists against criticizing sitting judges lest they risk “delegitimizing” the judiciary. She invoked unspecified threats to the rule of law and the independence of the Canadian judiciary as rhetorical tropes to silence would-be critics. Yet it’s even more concerning that organizations such as the CBA that demand unquestioned fealty to the judiciary play a role in the selection of judges. This should change.

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For the most part, Canadians have little insight into how federal court judges are chosen. However, the same could be said for most lawyers, politicians and even judges themselves. The system is so mysterious and opaque that very few people understand it, and those who do tend to manipulate it for their own political ends.

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The central feature of the appointments process is the judicial advisory committee (JAC). Each province has at least one JAC consisting of seven voting members. Their job is to review and assess the qualifications and aptitude of lawyers applying to become superior court judges.

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Politicians constitutionally tasked with appointing judges gleefully describe the JACs as both independent and non-partisan. This gives them cover when they ultimately appoint their own partisans to the bench. In truth, the JACs are not independent or non-partisan, and unfortunately, given their makeup, they are also becoming increasingly ideological.

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Currently, the JACs consists of three “members of the public” picked by the justice minister. Prior to 2016, these positions were typically given to lawyers who were able to assess other lawyers’ qualifications, as well as reach out to colleagues who would have worked with the candidates to obtain references.

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However, citing the need to diversify the bench, former prime minister Justin Trudeau’s government replaced the lawyers with members of the public ostensibly tasked with increasing judicial inclusivity. In reality, the public members represented the Trudeau Liberals’ progressive ideology, replacing partisanship with outright ideological bias.

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As for the other four members of the JAC, the chief justice of each province chooses one member directly, with the other three representing the provincial justice minister, the provincial law society and the CBA. However, in the case of the last three, they do not pick their own representative.

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Instead, they each provide a list of three nominees, from which the federal justice minister selects one to represent each of the three. As you can see, it starts to become a bit convoluted and somewhat less “independent” than its defenders often suggest.

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Adding to the problem are the provincial law societies and the CBA. As lawyer Josh Dehaas argued in these pages recently, the law societies, especially in Ontario, have become increasingly leftist in their politics. Similarly, the CBA, in addition to seeking to stamp out media dissent, has moved rapidly to the left on a number of legal and political issues.