An advocacy group has filed a legal challenge to the federal government’s method of selecting judges, saying it allows for political bias and thus violates Canadians' right to impartial courts.
Canada has “a politicized and partisan system that is actually biased or gives rise to a reasonable apprehension of bias,” Democracy Watch says in its challenge filed in Federal Court in Toronto, “which in turn risks destroying or actually destroys public confidence in the independence and impartiality of the judiciary.”
Rachel Rappaport, a spokeswoman for Justice Minister David Lametti, declined to comment on the case while it is before the courts, but said there are no partisan considerations in the minister’s decision-making process. “Our government is proud of the more than 400 outstanding jurists, women and men, who we have appointed to the bench and the transparent and accountable appointments process we put into place in 2016,” she said in an e-mail.
There are a little more than 900 full-time judges on federally appointed courts such as the Federal Court, provincial appeal courts, the top trial court of each province, and the Tax Court of Canada.
The first step of the appointments system is screening, done by 17 judicial advisory committees across the country. Candidates can be recommended, highly recommended or not recommended. Of the seven members on each committee, three are nominated by the federal government, and one each by the province’s chief justice, law society, bar association and attorney-general.
As vacancies arise on the bench, the federal cabinet makes appointments, on the recommendation of the justice minister and attorney-general. Those are drawn from the pool of candidates recommended by the advisory committees. The justice minister has an appointments adviser who vets candidates. The cabinet, separately, does its own vetting. And while previous governments have brought regional or “political” ministers from each province into the informal screening process, the Liberals have involved local MPs, The Globe and Mail’s reporting has found.
The Globe reported last year that candidates for federally appointed courts under the current government have their names put through a private party database called the Liberalist which tracks party membership, participation in party activities and the taking of lawn signs during election campaigns.
This month, Canadian Bar Association president Brad Regehr called for changes to the appointment process, saying in a public statement, “It is time to make the system less open to manipulation.”
Wayne MacKay, a professor emeritus at Dalhousie’s Schulich School of Law in Halifax, said in an e-mail that he thinks Democracy Watch’s challenge “would be a very hard case to win but it could be an important and effective way to put pressure on the powers that be to change the system. It is much more of a political argument (and a good and legitimate one) than a strong constitutional argument."
He added that he expects it to receive a hearing: “The constitutional claims do have enough merit that I doubt that a court would just dismiss the application out of hand.”
Ian Holloway, law dean at the University of Calgary, said in an interview that by going to court, rather than by pressing government or advocating in the media, Democracy Watch is illustrating why “there is an increasing politicization of the legal process in Canada.”
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