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Government selecting some judges from 'recommended' list, raising questions about whether politics is playing a role

The Liberal government is not always appointing judges from a pool of "highly recommended" candidates, raising questions about whether partisan political considerations or diversity concerns are trumping merit.

Under a ranking system brought back last October by the Liberals – who said it would "highlight truly outstanding candidates" – advisory committees identify the best as "highly recommended." Second best are "recommended." A third group is "unable to recommend." The Conservatives had dropped the "highly recommended" category in 2007, drawing criticism from the legal community.

But the Liberals have appointed a number of judges from the "recommended" list, according to a federal agency that supports the appointment process. Justice Minister Jody Wilson-Raybould would not reveal how many when contacted by The Globe and Mail. Neither would the Office of the Commissioner for Federal Judicial Affairs, which collects data on the process.

New statistics released as part of Ms. Wilson-Raybould's stated effort toward transparency and diversity show a large surplus of the truly outstanding: 129 highly recommended candidates, for just 74 appointments made since last October. The rankings come from 17 non-partisan advisory committees across the country, who review the candidates' applications and check each individual out with lawyers they know in the community.

Ms. Wilson-Raybould, who had instructed the judicial affairs commissioner to collect and publish the statistics, says it is her prerogative to appoint from the recommended list.

"I take care to consider a number of factors, such as each candidate's expertise, the needs of the court, and the strength of their application," she said in an e-mail to The Globe. "Whether someone is recommended or highly recommended is one factor that I take into account, among many important considerations, in exercising my prerogative to appoint the best candidates to the judiciary."

The highly recommended category is the key to a merit system of appointments, says Peter Russell, a political science professor emeritus at the University of Toronto. "If you just appoint people who are merely qualified, that is not looking for the best-qualified people for the positions."

In an interview, he questioned whether some appointed from the recommended group were chosen for their affiliation with the Liberals. "I think we should know – is it politics?"

The return of the "highly recommended" category was part of the Liberals' new appointments process in which candidates are now asked to self-declare their sexual orientation, ethnicity and other background factors. That information is kept private.

On Friday, for the first time in Canadian history, the judicial affairs commissioner published data on the diversity of candidates and appointments.

Commissioner Marc Giroux's office said revealing the number of appointees from the "recommended" list could be damaging to the legal process.

"We have considered whether providing a further breakdown regarding appointees and the 'rating' of recommended or highly recommended should be provided," spokeswoman Caroline Masse said. "However, if such were disclosed, litigants or others could determine whether or not a particular judge was recommended or highly recommended by simply referring to their biography and comparing it to these statistics.

"This prevents our office from distinguishing between the number of appointees that were highly recommended vs. recommended," Ms. Masse said in her e-mail.

Just short of 1,000 applications have been received since last October, of which the committees got around to assessing 441. Of those 441, 129 candidates were highly recommended, 82 were recommended and 230 were not recommended.

The data also show that, of the 74 appointments under the new process, 37 were men and 37 were women. (An additional 12 were of judges who moved from trial courts to appeal courts; of these, five were men and seven women.) Men, however, made up a much larger proportion of assessed and highly recommended candidates; there were 75 highly recommended men compared with 54 highly recommended women.

For years, the federal government had been urged by lawyers' groups to collect data on applications and appointments by race. The new data show that, in the "visible minority" category, 97 applied (or roughly 10 per cent of all applicants) and 42 were assessed. Thirteen were highly recommended, six recommended and 23 not recommended. The government appointed nine visible minority judges.

Toronto lawyer Ranjan Agarwal, past president of the South Asian Bar Association, said the numbers show that there is more work to be done in mentoring and encouraging visible minority lawyers to apply. "Maybe there's just not enough candidates applying from minority communities, which I think was the point of having the data – we could then focus in on the problem areas."

There were 36 Indigenous candidates who applied and 11 who were assessed. Five of the 11 were ranked highly recommended, two were recommended and four not recommended. Three Indigenous judges were appointed.

Of those lawyers who described themselves as belonging to an "ethnic/cultural group or other," there were 190 applications, and 80 assessed; of those, 18 were highly recommended, 16 recommended and 46 not recommended. Fifteen were appointed.

There was one person with a disability appointed out of 10 assessed candidates (two highly recommended and eight not recommended). There were four judges appointed from the LGBTQ2 community, out of 23 candidates assessed. Six were highly recommended.

There were more "highly recommended" candidates in every category of diversity (women, ethnic minorities, LGBTQ, Indigenous and disabled) than judges appointed from each group.