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Scanning a list of every judge on the Newfoundland bench, former Conservative justice minister John Crosbie rhymes off their prior political affiliations.

"Jim Adams, he was a good Liberal," Mr. Crosbie says. "Doug Cook, another good Liberal. Bob Wells, he was a PC elected provincially. I appointed him myself." And on it goes, until Mr. Crosbie sums it up: "I would say that just less than half were very active politically."

While Mr. Crosbie emphasized that most on the list became excellent judges, his summary highlights the fact that who you know and which party you support can be an inescapable fact of life when it comes to landing a federal judgeship.

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The issue moved front and centre recently, when Benoît Corbeil, a former senior Liberal Party organizer in Quebec and a witness at the Gomery inquiry into the federal sponsorship program, alleged that judicial appointments had been handed out as rewards to Liberal stalwarts.

Politicians and the Quebec press immediately began to examine the judiciary for signs of potential favouritism, turning up many who donated to the Liberal Party before their appointment to the bench. The Bloc Québécois also called for parliamentary investigation, specifically citing Madam Justice Claudette Tessier-Couture of the Quebec Superior Court as a former Liberal organizer who received a judgeship in 2003.

But Mr. Justice Gordon Campbell, a PEI Supreme Court judge with an extensive background in politics, said critics of the appointment system are missing an important point.

A former provincial Liberal Party president and chairman of several election campaigns, Judge Campbell said that some critics cling to a "ridiculous" belief that politically active lawyers always keep one eye trained on a judgeship.

"I was involved in politics because I loved it," said Judge Campbell, who was appointed in 2001 by former prime minister Jean Chrétien's Liberal government.

"In PEI, politics is in your blood. It's the provincial sport. Nobody is looking at whether they will get this or that reward . . .

"I find it really offensive when people say later that you did it for gain," he added.

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Critics, however, say that the Quebec allegations point to the need to look closely at the judicial appointment process. They argue that lawyers should become judges for one reason only: merit.

A mediocre appointment made to reward a political ally, they argue, means that a more qualified candidate who lacks political connections is passed over.

"The federal practice includes lots of great, pure-merit selections, but it still has its share of pretty brazen political appointments," said a veteran Bay Street lawyer who asked not to be named.

For many critics, Mr. Justice Paul Cosgrove of the Ontario Superior Court stands out as a poster boy for the problem. A former Liberal cabinet minister, he was appointed to the bench in 1984 by the Liberal government of John Turner, and now faces a Canadian Judicial Council inquiry involving allegations of biased rulings.

Judge Cosgrove was one of a batch of appointments made in the dying days of the Turner government that were criticized for being blatantly political. The outcry led to reforms in the late 1980s to reduce the role of patronage. Few, however, would claim the system is immune to political manipulation.

Indeed, Mr. Crosbie said patronage provides indispensable oil to the machinery of a political party. "I don't think there is any real desire in government to completely eliminate it. If you are going to get people to support and work for you, there has to be some attraction for them," he said in an interview.

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Under the current system, the names of people who apply for a federal judgeship are forwarded to advisory committees of eminent judges, lawyers and laymen. They examine the applicants' qualifications and personal background and rank them as either recommended, highly recommended, or "unable to recommend" in lists given to the federal justice minister.

"The [selection]process is real, it is active, and it is often inquisitorial," said former Canadian Bar Association president Eugene Meehan, a defender of the system.

The process does weed out the least competent candidates. But rather than being restricted to the names of the very best contenders, the final lists include everyone deemed either "highly recommended" or "recommended."

The Globe and Mail has learned through an Access to Information request that of 1,322 prospective judges assessed by these committees from 1999 to 2003, 537 were designated as "recommended" or "highly recommended."

This means that the federal government had 537 candidates from which to choose the 120 judges it appointed during that period. And there is nothing to stop the government from passing over top-rated candidates in favour of faithful party members who are less qualified.

Mr. Justice Jack Major of the Supreme Court of Canada explained how this can happen. "There may be 15 applications and they approve five or six," he said in a recent interview. "Eventually, you build a body of approved candidates who also happen to be supporters of the party in power. The committee endorsement makes it much easier for the minister to appoint a friend."

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Critics do not fault the advisory committees, but rather the bureaucrats and federal ministers who work with the lists.

"The government has often picked the people who are rated as qualified, even though quite a few others were highly qualified," said Peter Russell, a retired University of Toronto political scientist who is the ranking authority on the subject. "The federal system only ensures that the worst people don't get appointed. That's a pretty low bar."

Susan McGrath, president of the Canadian Bar Association, recalls that when the federal advisory committees were first set up during the time of former prime minister Brian Mulroney, the association attempted to persuade then-justice minister Kim Campbell to choose judges only from the "highly recommended" list.

"She was reluctant to do that," Ms. McGrath said in an interview. "To that extent, the government retained for itself some kind of wiggle room."

Ms. McGrath said the current system is fine with her, so long as those appointed are stellar choices.

But even some judges express doubts about the federal process. "There has to be a distinction drawn between people who are appointed because of politics, and people who would have been appointed anyway," said one provincial court judge who asked not to be identified. "The real question is, if you have 100 people who are qualified, are the best two or three getting appointed?"

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"It can get quite political," said another provincial court judge familiar with the federal process. "When you look at some of the people who apply, you know they have been quite active politically. Once you have that political element, if it is not done responsibly, it can get too crass."

J. J. Camp, a Vancouver lawyer who helped pioneer the federal advisory committees, said politics still remains a factor. "I'm certain there have been appointments where two candidates were equal, but the one who had the same political stripe as the minister of justice got the nod," he said in an interview.

Choosing judges

Who appoints them: Judges are appointed by both the provincial and federal governments. Under the Constitution, provinces appoint justices of the peace and judges for their provincial courts.

The federal minister of justice appoints the approximately 850 judges who sit on the court of appeal and superior court in each province and territory, the Federal Court of Canada, the Court Martial Appeal Court, Tax Court and the Supreme Court of Canada.

Salaries: Provincial court judges' salaries vary across the country, but tend to range from $160,000 to $200,000. Most federally appointed judges are paid between $216,000 and $240,000. (Supreme Court of Canada judges earn more.)

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On the bench: Federal judges can sit until they are 75. Provincial judges reach retirement at 65, but may sit until 75 with permission. Judges are expected to keep entirely clear of politically partisan activities. Although it is possible to remove a judge for misconduct, it is a rare and complex procedure.

FEDERAL LEVEL

Who is eligible: Since the late 1980s, those interested in federal appointments have been required to apply by letter to the Office of the Commissioner of Federal Judicial Affairs. Any lawyer may apply, and must fill out a personal information form.

Who screens: Applications are forwarded to advisory committees set up in each province and territory. The panels are composed of lawyers, judges and lay persons nominated by lawyers, governing bodies and chief judges.

Assessment: Committees assess candidates using a list of criteria created by the government, including work history, competence, judgment and integrity. The panels also conduct off-the-record interviews in the legal community. Then they divide candidates into three lists: Recommended, highly recommended, not recommended.

The lists of recommended and highly recommended are sent to the federal government and enter a pool from which the government selects judges. After a three-year period, candidates must reapply.

PROVINCIAL LEVEL

Who is eligible: In general, any experienced lawyer can apply.

Process: Selection procedures for provincial courts vary across the country. However, several provinces have begun to emulate the system Ontario set up in 1989.

Ontario model: In Ontario, specific judicial vacancies are advertised as they arise. Candidates are reviewed by a 13-member judicial appointments advisory committee, made up mainly of laymen. Assessments involve extensive background checks and personal interviews. A short list of the top candidates, usually three to six, is sent to the Attorney-General, who must select from it.

Kirk Makin

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