Joseph Arvay, Sean Hern and Alison Latimer are lawyers with the Vancouver firm Farris LLP
The current processes of judicial appointment and promotion undermine public confidence in Canada's courts and invite a two-pronged constitutional challenge.
First, the principle of the independence of the judiciary creates a constitutional requirement for transparent and impartial judicial appointment and promotion processes. Second, these processes should reflect the constitutional norms and values of equality, democracy and protection of minorities.
The Constitution empowers the governor-general to appoint judges to trial and appeal courts, but sets no process to follow for same. Since 1867, this power has been asserted by the prime minister and cabinet behind closed doors. The practice since 1988 has been to appoint judges only from a list of individuals recommended for judicial appointment by the Judicial Advisory Committee (JAC). These recommendations are to be made with merit as a central consideration.
Yet, the secrecy of the process occludes the standard on which merit is determined, and there is concern that the bar is set too low or omits important factors. Worse is the lack of transparency in the process that follows, where cabinet decides whom to appoint from the JAC's recommendations.
Also worrisome, there are no JACs or equivalents for promotion of trial judges to courts of appeal. Those promotions are made solely by the prime minister and cabinet.
These processes are systemically vulnerable to political strategizing and a majoritarian disregard for the importance of diversity on the bench.
The principle that upon judicial appointment, a lawyer puts aside all partisan political considerations and becomes an impartial, independent adjudicator is one on which the public relies. This does not mean candidates are expected to come to court without their own values or that those values will not change; nor that judges appointed by way of a process that includes political strategizing will conduct themselves in a manner that is other than independent and impartial.
But such strategizing compromises the perceived independence of the judiciary. It suggests government itself does not believe that appointees graduate out of their political persuasions and results in an appointment process that is cynical of judicial independence.
As to the process of promotion from trial courts to appellate courts, when litigants bring cases against government or its interests, they must be free of all reasonable concern that the presiding judge could be influenced by a desire to be promoted. Justice must be seen to be done as well as done. Appointment processes protected from political interference will enhance the public's confidence in the independence of the judiciary, and foster confidence in the justice system and democracy.
Just as the Supreme Court of Canada has held that an independent judicial compensation commission is constitutionally required to ensure the independence of the judiciary for matters of judicial compensation, so too – indeed, even more so – is an independent appointment and promotion commission constitutionally required.
Further, as the judiciary is the guardian of the Constitution and the Constitution is the supreme law, it is of significance that its interpretation be adjudicated by a judiciary that reflects the diversity in Canadian society in light of principles of equality, protection of minorities and democracy. These principles do not require perfect representation, but a gross disparity between the makeup of the judiciary and the public threatens access to, and quality of, justice.
Access to justice is negatively affected when portions of the population do not see themselves reflected in the court system and may therefore avoid or mistrust it. Quality of justice is negatively affected because the development of the law is hindered without a multiplicity of perspectives.
As public confidence in the process is failing, the time has come to ascertain the constitutional parameters of the appointment and promotion processes. Such a case will be of profound importance to the legal system as a whole and all of its participants.