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editorial

The federal government calls the judicial advisory committees 'the heart of the appointments process.'Adam Korzekwa/Getty Images/iStockphoto

If there’s one thing you can count on from a government, it’s that when it feels the need to say it is doing something in a transparent and accountable way, it is probably not doing that thing in a transparent and accountable way.

Such is the case with the Trudeau government’s process for recommending judges for appointment. The Liberals have repeatedly said they have made that process less political, and more transparent and accountable, since they first won election in 2015. Up to a point, that’s true.

The system revolves around arm’s-length judicial advisory committees in each province that vet the lawyers and lower-court judges who apply to sit on the superior and appeals courts of every province and territory, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada.

The committees’ role is to look at the applicants and send the justice minister a list of candidates, grading them as “highly recommended," “recommended” or “unable to recommend." Committee members are expressly forbidden from considering the applicants’ political activity.

The federal government calls the judicial advisory committees “the heart of the appointments process.” The public can find the names of the committee members on a government website. That part of the process is transparent. But after that, it breaks down badly.

Between Oct. 28, 2017 and Oct. 27, 2018, the committees assessed 629 candidates. Out of that pool, the Justice Minister appointed 79 new judges.

The public has no idea how many of the appointees were classified as “highly recommended," “recommended” or “unable to recommend." The government doesn’t share that information, although it says no one from the lowest category was appointed to the bench.

What the Liberals also don’t like to make public is the fact that the justice minister shares the lists of assessed candidates with political operatives in the Prime Minister’s Office, with Liberal MPs, and even with party volunteers.

Liberal MPs are allowed to look at the names of candidates who come from their ridings. Their feedback is then provided to the PMO, according to emails examined by The Globe and Mail. This was done over the concerns of the former justice minister, Jody Wilson-Raybould, and her judicial affairs adviser, François Giroux, in 2018.

“Regardless of what François thinks re. judicial consults, we should be able to see the specific caucus feedback,” Cameron Wilson, a staffer in Prime Minister Justin Trudeau’s office, wrote to an aide in Ms. Wilson-Raybould’s office.

It’s hard to imagine that seeking feedback from Liberal MPs can serve any purpose other than one that is partisan. The Trudeau government, like governments before it, treats its elected members as biologic voting robots programmed not to think outside party lines.

As well, whatever assessment they can provide is redundant, given that members of the judicial advisory committees have – or at least are supposed to have – greater expertise, and more objectivity, in judging a candidate’s qualifications. Why the need to vet the vetting?

And, of course, there is the fact that the Trudeau government doesn’t share its lists with MPs from other parties. Those opinions are unwelcome. This isn’t about Parliamentary oversight. Only the opinions of Liberal MPs are sought.

Or, in one case, that of a “Liberal connected lawyer” who had organized a fundraiser for Ms. Wilson-Raybould. He vouched for the ideological acceptability of a judge who had originally been appointed by the previous Conservative government to the Ontario Superior Court, and whom the Liberals elevated to the Ontario Appeals Court last year.

The secret backroom process, operating beneath the official process, isn’t illegal. But it’s hardly transparent, and nor is it what the “Because it’s 2015” Liberals promised. The people appointed by the Trudeau government may be fully qualified, but a layer of partisan interference has muddied the waters, making it impossible to know whether the best candidates, as scored by the committees, end up on the bench.

It also puts taints the justice system, suggesting that judges must be “philosophically aligned” – as that “liberal connected lawyer” put it – with the Trudeau government. Were a Conservative government discovered to be doing the same things, the outcry would be enormous, and most of it would be coming from the Liberal Party.