Lack of trust in judicial appointments process erodes confidence in system

  • January 25, 2021

The issue of political interference in judicial appointments got an airing this fall after several news outlets in Quebec reported on private departmental emails purporting to show undue politicking in federal appointments.

CBA President Brad Regehr’s Message from the President in the November CBA News on the topic stated – correctly – that the Association believes the appointments process must be transparent and as free as possible from both political interference and the perception of it. He suggested that this might be a good time to make the system less open to manipulation.

After that statement was spun by some media outlets and opposition MPs, the CBA wrote to the Prime Minister, the Justice Minister, and the opposition party leaders and justice critics to clarify what the Association was – and was not – saying about the process.

“The CBA has long supported an open and transparent process for appointing judges, based solely on merit and ultimately representative of Canadian society, that would result in a fairly chosen and independent judiciary. An independent judiciary is a keystone of Canadian democracy.”

The letter clarified that the CBA has not accused the government of interfering in judicial appointments by appointing its friends, nor is it suggesting that the process has resulted in unworthy appointments.

The CBA recognizes several features in the current judicial appointment system that create transparency and facilitate the identification of meritorious candidates for the Bench.

That said, there are still improvements that could be made.

For example, the letter says that delays in filling judicial vacancies starts with delays in filling positions on the Judicial Advisory Committees created to assess the worthiness of applicants. The CBA encourages the government to fill JAC vacancies quickly when terms end.

The Association is also “extremely concerned” about breaches of confidentiality in the process, with the names of applicants being released and publicized.

“We … reiterate that merit must determine the best candidates, who also reflect the diversity of Canada’s populations. Political interference, the appearance of it, or unfounded speculation of it all risk eroding public confidence in the independence and fairness of the justice system.”