REASONABLE APPREHENSION OF NEPOTISM: THE JUDICIAL APPOINTMENT PROCESS
REASONABLE APPREHENSION OF NEPOTISM: THE JUDICIAL APPOINTMENT PROCESS
The National Post reported that at least six high level judges may have paid to meet Justin Trudeau or the Deputy Prime Minister before their judicial appointments. It is further reported that over three-times as many Liberal Party donors have been appointed than Conservative donors since 2016.
As a member in good standing with the Law Society of Alberta who has made a career in the practice of criminal law, I have long been concerned about the judicial appointment process at both the Provincial and Federal level. To be fair, most judges – whether Federally or Provincially appointed – are not only “qualified” to hold their position but they have earned it. They were respected in their field and are respected jurists.
To my mind, it is not only important to have a merit based, transparent judicial appointment process, free of nepotism for the purpose of maintaining public confidence in the administration of justice, it is important to ensure that those deserving of the appointment are not unfairly tarnished by those who are not.
APPLYING FOR TO BE A JUDGE
According to the Office of the Commissioner for Federal Judicial Affairs Canada, lawyers seeking judicial appointment must apply.
Specifically, “[q]ualified lawyers and persons holding provincial or territorial judicial office who wish to be considered for appointment as a judge of a superior court in a province or territory or of the Federal Court of Appeal, the Federal Court or Tax Court of Canada must apply to the Commissioner for Federal Judicial Affairs”.
The Provinces – who appoint Provincial Court Judges – also have an application process.
In Alberta, the minimum basic requirement to be qualified to become a Provincial Court Judge means that any lawyer “…with at least 10 years at the Bar can apply to become a Justice of the Alberta Court of Justice”.
Yes, you are reading that correctly. To be “qualified” to become a judge in Alberta only requires 10 years “at the Bar”. I think it is important for anybody reading this to appreciate that there are very few lawyers appointed to the bench with just 10 years of practice experience. I can only think of one lawyer appointed to the bench with so few years under his belt.
TO BE QUALIFIED
All it means to be “qualified” is that the candidate is officially recognized as being able to perform the job. To be “qualified” therefore doesn’t necessarily mean the candidate is amongst the best in their field or even really good at their job it all. The words “at the bar” (used in Alberta) further diminish the requirement for real job experience. For example, a lawyer could be a member of the Alberta bar for 10 years, without meaningfully practicing law at all and still meet the minimum basic application standard for judicial appointment.
My point is, meeting bare minimum requirements can satisfy the definition of “qualified”. However, being “qualified’ does not necessarily mean the candidate should get the job. I do not agree that any lawyer with only 10 years of practice experience is qualified to be a judge. Not only is a person with only 10 years experience barely scratching the surface of a legal practice, he or she very likely lacks the life experience necessary to adjudicate cases involving ordinary people tangled up in what is for some, the harsh realities of daily life. A good judge is not only well versed in law, procedure and the rules of evidence, he or she has insight into the ordinary lives of people.
PACKING THE COURT
An important component to being a judge is not only about qualifications, it is about having the ability and space to be truly independent of the party who gave the job.
As I read it, the point of the National Post article, “High-level judges may have paid to meet Trudeau before their appointments”, the issue is not so much about “qualification” as it is about political favoritism and nepotism.
Nepotism is “[the practice among those with power or influence of favoring relatives, friends, or associates, especially by giving them jobs”. The concern raised by the National Post was that the Liberal Government may effectively be “packing the court” with friends of the Liberal Party.
For Canada’s democracy (or self-pronounced democracy) to operate with necessary checks and balances to power, it is important that judge’s have judicial independence. As stated by the Government of Canada:
Judicial independence is a cornerstone of the Canadian judicial system. That is why, under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislature. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law.
Of course, if Government appoints judges who are politically aligned with its policy and ideology then it is questionable whether the Court is actually independent of the Government who gave them the job.
Packing the Court occurs when the Government in power appoints judges or justices who are more likely to align with its political viewpoint. This is done with the intent of controlling the ideological makeup of the judicial branch. Simply stated, if the ideological composition of the court aligns with the Government, then there is a greater likelihood that the Court will uphold the appointing Governments policy, no matter how problematic or unconstitutional.
According to the National Post,
When asked in July why Liberal donors are more likely to be appointed to [Federal] judicial positions than Conservative and other opposition party donors, a spokesperson for the Prime Minister’s Office (PMO), Mohammad Hussain, responded, “the process is always based on merit. We do not use political party databases.”
Mr. Hussain’s words that “the process is always based on merit” and the Government does “not use political party databases” is interesting deflection. That the Government does not use “political party databases” in no way means that candidates did not use fundraiser events as a means of connecting with those responsible for their appointment. If fundraiser events are used to make private connections, both the merit and transparency of the appointment are called into question.
According to the National Post: “The federal judicial appointment process starts with recommendations from independent Judicial Advisory Committees (JACs) and the minister of justice”. This begs the question, did a Federally appointed judge make contact with a member of the Judicial Advisory Committee, the Minister of Justice, the Prime Minister or the Deputy Prime Minister at a Liberal fundraiser? If the answer is “yes”, then there are serious questions that undermine the transparency and ultimate legitimacy of the appointment.
It is “…the prime minister [who] has final discretion over who gets appointed. The prime minister is not legally obligated to follow the recommendations provided to him and is not required to disclose when the candidates most highly recommended by the JACs are passed over” (see National Post article). Did a judicial candidate have direct access to Mr. Trudeau at a Liberal Party fundraiser? Again, if the answer is “yes”, then there are serious questions that undermine the transparency of the appointment.
The National Post asserts that the key question is whether other candidates were skipped in favour of friends of the Governing party. Of course, the Prime Minister’s office claims that the appointment process is merit based and transparent. As stated by Alison Murphy – a representative of the Liberal Party: “Our Government has been committed to an open and transparent, merit-based appointments process to encourage continued trust in Canada’s democracy and ensure the integrity of its public institutions.”
That's a nice soundbite. However, how can the Liberal Party claim such a commitment if appointments are friends of the Party who had special access to the Prime Minister, the judicial selection committee or both at fundraiser events.
The word “nepotism” is a scoundrelly word. However, if anybody thinks that any business is not more likely to favour the people they know and are familiar with over others, they are living in a dreamworld. To be fair, just because a known commodity is given a job, doesn’t mean that commodity did not earn that job on merit. To me the real issue is the appointment process itself.
If the process allows for such obvious nepotism or an apprehension of nepotism, then the process lacks credibility and transparency. To alleviate the apprehension, steps must be taken to secure the legitimacy of the appointment process.
To my mind, any candidate seeking judicial appointment, whether Provincially or Federally, must, at a minimum and well in advance of applying for the job, participate in a lengthy cooling off period. In short, candidates should have to declare by way of an undertaking that they have surrendered all party memberships and severed ties with all persons involved in the appointment process well in advance of applying to be a judge. Since it can take years to be appointed, the cooling off would be very likely to occur well prior to the candidate being awarded the position.
In Alberta, when a defence lawyer or private practicing lawyer is appointed to the bench, that lawyer is required to declare all conflicts and participate in a 5-year cooling off period before hearing any cases from the firm to which they were previously affiliated.
Interestingly, the same requirement does not as seriously apply to Crown Prosecutor appointments. I have always wondered about the double standard and felt mildly irritated that Prosecutor appointments seem to be treated as more ethical human beings than private practicing lawyers. I find it odd that a Chief Crown Prosecutor can immediately adjudicate cases litigated by the very same Crown’s that he or she had authority over just weeks or months before becoming a judge.
The reality is, prosecutors are no different than private practicing lawyers. They work together, often in close proximity in a shared office environment. They presumably talk every day while at the office. Some quite understandably fraternize together in their off-time. So why not the same cooling off period for Prosecutors? I appreciate this might require Crown appointments to change jurisdictions, but to my mind, this is the price to be paid for being given such incredible power.
Judges have financial security, judicial independence and security of tenure. This means that once appointed as a judge, there is a virtual guarantee of salary, pension and a job for life. All of this is provided because our system of justice recognizes that judge's must be able to make decisions free of political compulsion. However, if the judge has not cooled off his or her party affiliation for a reasonable time and has maintained relationships with the appointing political party, the judge is arguably an instrument of the political party who appointed them. This is dangerous because this relationship erodes the checks and balances to power. Perhaps the judge even feels indebted?
In sum, being qualified to do a job, does not mean one is good at the job. Merely being qualified is hardly enough to be a judge. If judges are truly appointed on merit, the entire process underlying their appointment – including all communications with parties connected to the hiring process – should be disclosed and made public. Where candidates have been affiliated with a particular political party, they should be required to surrender those affiliations and to participate in a lengthy cooling off period before applying. The cooling period should be consistently applied across the board to both Prosecutor and private counsel appointments.
There are a lot of noble and incredibly intelligent lawyers who clearly deserve everything they have earned, including their judicial appointment.
However, in my opinion, the practice of law is also incredibly flawed. We have lawyers making submissions in Court who are in clear need of real mentorship. We have judges who were not at the top of their respective fields (not even close) and who do not have the respect of the people they preside over. We have lawyers appointed as King’s Counsel (formerly Queen’s Counsel) who do not deserve the special designation. All of this unfortunately detracts from those lawyers who deserve the recognition they have earned. I say that we strive to ensure that the nobility of the practice of law is maintained at all times by ensuring that those who have reached the highest positions (judges) are appointed by operation of a transparent process, where there is no reasonable apprehension of nepotism or favouritism.
Our law recognizes the concepts of actual bias and reasonable apprehension of bias. When judicial appointments have gained special access to their friends who gave them the job, it is hard not to think that the Government is packing the court for the purpose concretizing a political agenda that could impact all Canadians.
David Chow is a Calgary based criminal lawyer who practices exclusively in the field of criminal law. The number of lawyers operating in the City of Calgary is growing; not all of them are experienced or necessarily qualified to handle a criminal case. If you have been charged with a criminal offence or issued a roadside sanction it is really important for you to choose the right lawyer. Be careful. Don't be hasty. Retain your lawyer only after completing all reasonable due diligence.