Trudeau - Leblanc: Nepotism, Merit or Both?

judicial appointment process

The judicial appointment process in Canada has deservedly undergone some criticism over the last number of decades. Unlike the American approach where most judges are “elected” (which has many pitfalls of its own), all judges are “appointed” in Canada.  Though the appointment process itself is fairly easy to follow, the selection parameters for judicial appointments and the reasons underpinning the final decision for judicial appointments and the process of actual evaluation is far more nebulous.

Few actual studies about judicial performance or the appointment process in Canada have been done. Judicial performance evaluation has been met with resistance.  On that latter point, in a paper titled, “Evaluating Federally Appointed Judges in Canada: Analyzing the Controversy”, Troy Riddell, Lori Hausegger and Mathew Hennigar from York University attempted a “judicial performance evaluation”, which was met with resistance from various members of the legal profession across Canada. The basis of the resistance was that “judicial independence” would somehow be compromised.

Unfortunately, other than echoing the magic words, “judicial independence”, the argument that evaluating judicial performance would impact judicial independence was not well defended.  In this writer’s view, there is a major difference between “independence” and “performance”.  To conflate the issues is really, in my opinion, to introduce a red herring that works to conveniently deflect the issue rather than confront it. In the words of the authors, “The strong reaction of a number of legal bodies and individuals and the ensuing media coverage seriously undermined our ability to conduct the research”.

This reaction left me to ponder the relationship between the supposedly independent organizations in Canada.  Though this is a subject for another time, I wonder about the rapport between the Government, its judicial appointments; the appointments and the legal community and the role of the media to either uncover truth or to act as a shield for questionable process. 

cbc news reports controversy

Recently responding to a controversy about nepotism in the judicial appointment process, Prime Minister Trudeau told reporters: "We are fully confident that the process, the transparent merit-based process that we've put in place, is the right one and we stand by it,". 

https://www.cbc.ca/news/politics/trudeau-leblanc-conacher-judges-1.5200417

 I suppose the following appointments were just coincidence?

CBC News revealed this week that recent federal appointments announced in New Brunswick include LeBlanc's neighbour, a LeBlanc family relation and three lawyers who helped retire debts from his unsuccessful 2008 leadership bid. 

Now, I am not suggesting that any of the Government appointments are not qualified to do the job.  However, if one accepts the CBC news report, nepotism is a pressing and substantial concern. 

Last month, Moncton lawyer Robert M. Dysart and Saint John lawyer Arthur T. Doyle were appointed to the trial division of the Court of Queen's Bench. 

According to financial records on file with Elections Canada, both men have been regular donors to the Liberal Party, including to LeBlanc's Beauséjour riding association, even though in Doyle's case he lives 100 kilometres away.

The two were also among a group of 50 donors who gave money in 2009 to help LeBlanc retire about $31,000 in debts from his unsuccessful 2008 federal Liberal leadership campaign, according to records filed with Elections Canada.

Also helping with that leadership debt was lawyer Charles LeBlond, who was appointed to the Court of Appeal in March. 

Justice Tracey DeWare was named chief justice of New Brunswick's Court of Queen's Bench trial division last month. 

DeWare was a Conservative Party donor and originally appointed to the bench in 2012 by the Conservative government of Stephen Harper. But she is also LeBlanc's neighbour, and her husband, businessman Jacques Pinet, contributed to LeBlanc's leadership debt repayment.  

Moncton family lawyer Marie-Claude Bélanger-Richard was picked to fill a judicial vacancy in Saint John. She is married to LeBlanc's brother-in-law.

a calgary criminal lawyer's opinion only

Now, I understand that as rationale human beings we tend to vacillate in the direction we know.  With that in mind, I acknowledge that being a supporter of the appointing political party should not necessarily be an impediment to a judgeship.  However, as the connections become more personal, such as with the appointment of a “next door neighbour” whose husband contributed heavily to the appointing Minister’s “debt repayment”, one can’t help but be naturally sceptical.  Using this example, suppose that Justice Tracey DeWare was an otherwise perfectly qualified candidate.  Even if Justice DeWare was otherwise perfectly qualified, perhaps this is one of those occasions where the appointing Government should have selected one of its other qualified candidates instead; for justice must not only be done but seen to be done. In other words, a candidate may be qualified, but not perfectly qualified if he or she has too close a connection to the appointing party.

Additionally, even if Justice DeWare and the other appointments were very qualified, their close personal connections to the point of appearing as if they were owed the appointment, sullies the appearance of fairness and impartiality in our justice system. In fact, to this writer, this is one of those occasions where perhaps the appointee needed to turn down the job.

Again, I am not saying that any of these judges are not qualified.  Rather, I am saying that their close personal connections to the appointing party diminishes the perception that they were a merit appointment.

The Liberals defend their choice, saying that "[a]ll judicial appointments are made on the basis of merit. Candidates are first evaluated by independent judicial advisory committees, who thoroughly review the applications and provide recommendations to the minister." 

The key language is that all judicial appointments are reviewed and “recommended” to the Minister. In circumstances where there was a merit candidate who was not a neighbour, shouldn’t the candidate without the close personal connection be preferred? 

Not surprisingly, the Conservatives were outraged. "Its outrageous”, said Conservative Leader Andrew Scheer. “And once again we see that the Trudeau Liberals have been caught abusing the power of their offices to reward their rich and powerful friends”. 

Lets be clear, the Harper Government was no different.  Regardless, two wrongs don’t make a right.

the great tragedy

In my opinion, perhaps the greatest tragedy with the kind of nepotism arguably displayed in New Brunswick is that it diminishes the accomplishment of the many terrific judicial appointments across this Country. I mean, there are seriously some quality people sitting on the bench (both Provincially and Federally) who preside over cases not because they were friends with the right people, but because they are highly intelligent, quality human beings whose disposition and sense of fairness makes them ideal for the job.

David G. Chow

Calgary Criminal Defence Lawyer

David Chow is a criminal defence lawyer in Calgary who routinely opines on issues in criminal justice, the Courts and the law.  If you are hunting for a criminal defence lawyer anywhere in Alberta, British Columbia, Saskatchewan or Whitehorse (Yukon) call David Chow for a free telephone consultation. David is not just a Calgary criminal lawyer, he is a full service Alberta criminal defence lawyer who handles everything from domestic violence, impaired driving, drug defence to serious crimes of violence, including murder.