Merit is too often trumped by political considerations in judicial appointments, leaders in the legal community say in calling for the federal government to overhaul the process.
Among the simpler proposals: Putting ordinary Canadians on the committees that screen future judges, and restoring the right of these committees to say which ones they "highly recommend." They are now limited to recommend or not recommend.
Some legal observers say the importance of politics in appointments could be further reduced by adopting models like Ontario's, or Britain's, in which independent committees give short lists of candidates from which the government must choose. Still, other critics like the current model, but say the justice minister needs to act as an impartial leader in the legal system, taking less direction from the prime minister.
The Conservative government has appointed about 600 of the country's 840 full-time federally appointed judges, on provincial courts of appeal, superior courts and the Federal Court. The Globe reported this weekend, based on extensive interviews with participants in the closed-door appointment process, that the government has tried to reshape the judiciary by looking for cautious, technically minded judges it believes will be less inclined to challenge its tough crime laws and defend individual rights. The judges can remain on the bench until the age of 75, and form an important legacy for Prime Minister Stephen Harper as they continue to issue judgments even if other parties form government.
"Merit in judicial appointments has given way to ideology. Some legacy!" Toronto lawyer Ron Atkey, a former Progressive Conservative MP and cabinet minister who has been involved in the appointments of judges, said by e-mail.
J.J. Camp, a Vancouver lawyer and former president of the Canadian Bar Association, which represents 37,000 lawyers, said in an interview he is fearful that "we are not getting the best and the brightest anymore. I think it's driven in part by a government agenda that is concerned about activist judges."
Under the current system, judicial advisory committees composed of legal and judicial experts make recommendations to the government on whom to appoint. Of the 300 judges recommended by screening committees across the country in 2013-14, the government appointed 65, after a process involving recommendations from cabinet ministers serving as scouts in each region, scrutiny by the justice minister and the Prime Minister's Office, and a decision by cabinet.
"Judicial appointments are a matter for the executive and will continue to be," the Justice Minister's office said in a statement.
"All judges are appointed based on merit and legal excellence and on recommendations made by the 17 Judicial Advisory Committees across Canada."
The system's chief weakness, according to Michele Hollins, the Canadian Bar Association's current president, is that what happens after the judicial advisory committees make their recommendations is a mystery.
"What happens after that is particularly difficult to decipher. It is shrouded in secrecy and I think leaves too much room for people to imagine what's going on."
The screening committees were established by the Progressive Conservative government of Brian Mulroney in 1988 to be a neutral, independent voice in the process. That came after a Canadian Bar Association report in 1985 found that appointments were "overly dominated by political considerations." The committees had representatives of law societies, bar associations, provincial governments, a chief justice or other judge and federal representatives. To that, Mr. Harper's Conservatives, in the first year they came to office, added a police representative and took away the judge's vote – giving federal appointees a majority vote. They also took away the "highly recommended" category. In 2013-14, there were 75 "highly recommended" judges, or about enough to fill all positions.
The screening committee "is the most politically neutral part of the process. It seems to me that you'd want the very best intelligence from that level," Ms. Hollins said in an interview, calling for the "highly recommended" category to be restored.
Among the bar association's wide-ranging proposals for change, she would like to see non-lawyers on the committees. "If you're talking about Canadians having confidence in the process, I don't know why you wouldn't consider that."
Archie Kaiser, a law professor at Dalhousie University's Schulich law school, called for the creation of an all-party committee to study the best models in Canada and abroad for judicial appointments. He said the system "routinely betrays the principle that the public deserves the best qualified judges, for indefensible reasons."
William Trudell, chair of the Canadian Council of Criminal Defence Lawyers, was a member of Ontario's judicial screening committee for five years. "It was probably one of the most remarkable experiences of my life. There was no politics in that room."
Mr. Atkey said that people close to the process have told him that under the current system, "Everything is run out of the PMO [Prime Minister's Office]. I think the Minister of Justice is just a figurehead and if the Minister of Justice wanted to appoint somebody that was unacceptable to the PMO he wouldn't. And the converse is true. If the PMO wants somebody and the Minister of Justice doesn't get particularly good vibes or reports, too bad."