Jody Wilson-Raybould tried to limit the role of the Prime Minister’s Office in the judicial appointment process, sources have told The Globe and Mail, adding to an already tense standoff between the then-justice minister and Justin Trudeau’s inner circle over the prosecution of engineering giant SNC-Lavalin.
After being named justice minister in 2015, Ms. Wilson-Raybould set about depoliticizing the way judges are appointed in Canada, giving greater independence to the seven-member screening committees, which rank candidates based on an extensive new questionnaire. Her judicial adviser until February of last year, Katie Black, said she was hired to bring a non-partisan point of view to the appointment process.
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"She wanted someone to be apolitical for this position, and I thought that this demonstrated a high level of integrity where she wanted to ensure that the judicial appointment process was apolitical,” said Ms. Black, who worked as a law clerk to former Supreme Court of Canada chief justice Beverley McLachlin and is now an Ottawa lawyer.
Ms. Black said Ms. Wilson-Raybould wanted to see judicial appointments based on merit, over the entire course of someone’s legal career, and not on political connections.
“What’s that person’s political background was never considered in the selection process,” she said.
But other sources said the PMO took exception to Ms. Wilson-Raybould’s decision to restrict the amount of information that was shared within the government on the various lawyers looking for a position on the bench. A specific point of contention was whether the PMO should have access to the confidential assessment of candidates provided by sitting judges, including the chief justices of the courts with vacancies to fill, the sources said.
The internal debate over judicial appointments contributed to the fraught relationship between the PMO and Ms. Wilson-Raybould, who was shuffled to the Department of Veterans Affairs in early January. She resigned from her new position on Feb. 12 in the midst a growing furor over whether the PMO put pressure on her to reach an out-of-court settlement with SNC-Lavalin, which is facing bribery and fraud charges related to its efforts to secure government contracts in Libya.
The opposition has charged that Ms. Wilson-Raybould was shuffled out of the Justice Department to make way for a minister who would be more responsive to the demands of the PMO. She was replaced by David Lametti, a Montreal lawyer and law professor, who has made seven judicial appointments in recent weeks.
Officially, judicial appointments are made by the Governor-General, based on the advice of the cabinet after a recommendation from the justice minister. The process starts when applicants are evaluated by one of 17 judicial advisory committees across the country, which determines whether a candidate is highly recommended, recommended or unsuitable for the bench.
Under the previous, Conservative government, the four federally appointed members (including a police representative) had a voting majority on these judicial advisory committees. Under the new process created by Ms. Wilson-Raybould, the federal government would only appoint three members to represent the general public. The four other members of the seven-member committees now represent the provincial bar, the provincial chapter of the Canadian Bar Association, the chief justice of the province and the provincial attorney-general.
The new process also allowed the committees to rank candidates as “highly” recommended in order to favour “truly outstanding candidates” for judicial appointments. During her time at Justice, Ms. Wilson-Raybould increased the proportion of women and members of minorities on the judiciary.
Three sources have provided additional information on subsequent steps in the appointment process. The Globe has granted anonymity to these sources because they were not authorized to speak publicly about the issue.
According to these sources, the additional vetting at the political level is overseen by the office of the minister of justice and the PMO.
Under the current government, all the ministers from a candidate’s province are consulted on an appointment. For example, all the ministers from British Columbia, Ontario or Quebec have a say on candidates from their province, and the lone ministers from Manitoba or Saskatchewan are consulted on candidates in their province.
In addition, various backbench MPs (especially lawyers in the caucus) can be asked for their thoughts on candidates, as well as individuals outside government, including Liberal officials in some cases. The screening also includes a search of databases of donations to political parties at the provincial and federal level.
According to the sources, there was a disagreement last year between the PMO and Ms. Wilson-Raybould over the sharing of comments on candidates made by outside lawyers and judges.
These consultations conducted by Justice officials are deemed essential to determining the needs of each court, in addition to getting a sense of a candidate’s reputation and abilities. Ms. Wilson-Raybould’s view was that the comments were made in confidence to her office and that their use should be restricted to her role in determining which candidates would be recommended to cabinet for appointment to the bench, the sources said.
The PMO, however, grew concerned about the shrinking amount of information transmitted by Ms. Wilson-Raybould’s office and raised the matter with her, the sources said.
A government official said that comments made by judges about individual candidates were mistakenly shared with the PMO in early 2018 and that the practice has since stopped. Other sources said the debate over whether these comments should be shared with the PMO continued later in the year and that Ms. Wilson-Raybould insisted they could not be distributed outside her office.
In a statement after losing her job as justice minister, Ms. Wilson-Raybould said she worked to ensure that judicial appointments were “transparent, inclusive and accountable." Her office said she could not be reached for comment on Friday.
A spokesman for Mr. Lametti said the government is working to "appoint the most meritorious jurists who reflect the country they serve.
“Our Government believes that Canadians’ confidence in our judiciary is reinforced by a transparent and accountable selection process that identifies outstanding judicial candidates who reflect Canada’s diversity," David Taylor said in a statement.
Robert Fife