Justice Minister Peter MacKay chose eight prosecutors and no defence lawyers to be judges in his latest round of appointments this month, creating a growing imbalance on the federal bench.
Mr. MacKay has chosen 15 prosecutors since his last appointment of a lawyer whose main area is defence, which came in October, 2013, a government list of federal judicial appointments shows. He has appointed 88 new judges during that time to federally appointed courts, such as superior and appeal courts, the two highest levels in the provinces.
The legal profession considers defence lawyers fit for the bench, and many have been appointed over the years, including some by the Conservatives. Before Prime Minister Stephen Harper came to power in 2006, some were even named straight from practice to the Supreme Court of Canada or provincial appeal courts.
"Why would they be any less fit to be judges than any other practising lawyer?" asked Dalhousie University law professor Wayne MacKay (no relation). "An impartial and fair bench can best be built by having a diversity of views represented within the judiciary."
The prosecutor-heavy appointment of judges comes while the government is trying to toughen criminal law, with more than 30 crime bills debated in Parliament since June, and reflects an attempt to find judges who will be tougher on crime, according to observers such as Prof. MacKay.
The Conservative government has appointed more than 60 per cent of the country's 840 full-time, federally appointed judges. There are no public hearings for the new appointees.
Jennifer Gearey, a spokeswoman for Justice Minister MacKay, said the qualifications of everyone who applies to be a judge are assessed by a judicial advisory committee in their region or province. "In the case of lawyers applying to be judges, committees assess them, provide comments, and also recommend them or not for appointment. The Minister of Justice only appoints those recommended by such committees. Appointment is based on legal merit and excellence."
The eight prosecutors named this month accounted for slightly more than one in three of the government's 22 appointments of non-judges. (Mr. MacKay also announced several promotions of sitting judges).
A wide variety of other types of specialties were represented, including civil law, corporate law, labour law and aboriginal law. Three law professors, one of them with expertise in criminal law, were chosen. One judge came from the Privy Council Office, which advises cabinet. The largest group among the 88 chosen in the past 15 months are non-criminal lawyers in private practice.
One lawyer appointed this month as a judge had done defence and other litigation in the past year, but had been a prosecutor for the previous 22 years. Two others are described on the ministry website as having practised criminal law among several types of law.
The criminal defence bar is deeply unhappy at what it sees as a government attempt to skew the balance on the bench.
Peter Wilson, a senior Vancouver defence lawyer who has also served as a special Crown prosecutor in high-profile cases, said many prosecutors make excellent judges. But he objects to the near-absence of defence lawyers in British Columbia. Thirteen prosecutors and just two lawyers whose primary work was in defence have been chosen since the Conservative government came to power in 2006, an analysis by The Globe and Mail shows.
"Balance is necessary in an adversarial system," he said in an interview. "And if you pick all of your judges from one side of the system, sooner or later you will skew the balance. It will take time, but it will happen."
Anthony Moustacalis, president of the Criminal Lawyers Association, said that previous Liberal governments were more likely than the current government to appoint defence lawyers in Ontario. "There's basically a feeding frenzy of Crowns to get these positions, it would appear."
Mr. MacKay's last appointment of a predominantly defence lawyer is a close personal friend of his. Joshua Arnold, the former president of the Nova Scotia Criminal Lawyers Association, attended Mr. MacKay's wedding to Nazanin Afshin-Jam in Mexico three years ago. On Justice Arnold's current Facebook page, he "likes" Mr. MacKay. Mr. MacKay named Justice Arnold to the Nova Scotia Supreme Court. (This October, Mr. MacKay named to that court another wedding attendee, Cindy Cormier, a government child-protection lawyer who is married to Justice Arnold.)
Ms. Gearey, when asked about the appointment of Justice Arnold, repeated her message that legal excellence and merit are the priorities.
An exception to the general rule is in Nova Scotia, Mr. MacKay's home province, where he served as a prosecutor two decades ago. Apart from Justice Arnold, two other criminal defence lawyers with strong reputations have been appointed judges under the Conservatives, both of them predating Mr. MacKay's 18 months as justice minister.
These appointments may reflect the unwritten rules of judicial appointments, legal observers say, in which regional cabinet members, through their local knowledge and contacts, champion the appointment of new candidates to the Justice Minister.
Before he was Justice Minister, Mr. MacKay opened the door to Nova Scotia defence lawyers, but as Justice Minister he has not exercised the same influence for defence lawyers in other provinces.
Prof. MacKay, of Dalhousie, connected the imbalance in appointments to the Conservative government's focus on crime control, and said the government opposes what it sees as an excessive use of Charter rights, especially by defence lawyers in criminal cases.
"It is not supposed to be this way. The role of government in selecting judges should be to hire on the basis of competence and not on their particular viewpoints, whether they're likely to be pro-crime control or pro-accused, whether they're pro- government or more willing to challenge the government. In the extreme, that would get to a kind of court stacking" seen in the United States.
Sean Fine