New advisory committees could change the face of Canada’s judiciary

theglobeandmail.com
By Sean Fine
Jan. 22, 2017

With the number of judicial vacancies reaching near-record levels, the Liberal government has revived a dormant appointment process, and signalled that it intends to change the face of the judiciary.

It named the members of seven newly constituted screening committees for the federal bench last week. Each of the committees has a majority of women.

The announcement of the judicial advisory committees comes as full-time vacancies are at 57 across the country, and as courts are struggling to meet Supreme Court deadlines for timely justice. In the fall, murder charges in Alberta and Ontario were thrown out for unreasonable delay. All judicial advisory committees from Ontario to Newfoundland and Labrador have been without any members at all since at least last April. And the government removed the members of all other committees in October.

The government announcement still leaves 10 of the 17 committees across Canada without members. A spokeswoman for Justice Minister Jody Wilson-Raybould said the government named the committees in areas with high numbers of judicial vacancies.

The federal government asked members of the public, including non-lawyers, to apply for three federally appointed spots on each committee back in mid-October, allowing one month to do so. The Liberals were critical of the appointment process under the Conservatives for what they called its lack of openness and a lack of diversity in appointments. While the government devised a new system, it appointed just 39 judges (some of them promotions, or the naming of regional judges) in the 16 months since the Liberals took office. Chief Justice Neil Wittmann of the Alberta Court of Queen’s Bench said publicly his court had grown desperate.

Rob Nicholson, the Conservatives’ justice critic, is critical of delays in the appointment process. “I still don’t understand why it has taken them so long to make the judicial appointments that it is their responsibility to make,” he said in an interview. It is important to make timely appointments “because when there’s an absence of judges, cases will get thrown out. That does not help the credibility of the justice system.” He said he is “fine” with the majority of members being women.

The Justice Minister did not respond to questions about when the committees would begin recommending candidates, and when the government would make its first appointments from those recommendations. The committees do not pick judges, but they create the pool of approved candidates from which the federal government makes its choices.

Some legal observers consider the federal government’s authority to appoint judges a major yet underappreciated exercise of its power. Former prime minister Stephen Harper changed the process soon after taking office to give Ottawa’s appointees on the committees a voting majority: he added a police representative, and took away the vote from judges who sat on committees. He also removed the “highly qualified” category, to leave the government more leeway to choose. Under the Conservatives, 30 per cent of applicants for the federal judiciary, which includes the Federal Court, Tax Court and superior courts in the provinces, were women, and 30 per cent of appointees were women. Little more than a handful of new judges were visible minorities, though in its decade in office the Conservatives did promote several minorities from lower courts to higher ones.

The Liberals have now undone all the Conservative changes. The police representative is gone. The legal community (the Canadian Bar Association, the law society, the provincial Attorney-General and a Chief Justice) appoints four of the seven members, and the federal government advertised for candidates for the remaining three positions from the general public. While the names of members on previous committees were public, the government now publishes capsule biographies on each. Several have a background in social causes, such as Bruce Rivers of Toronto, executive director of Covenant House, which serves homeless youth, and Jelle Jeen Van Ens of Beaver County, Alta, a social worker.

In all, 34 of the 49 members named so far to the committees are women. On two of the new committees, there is just one man out of seven members, and on two others, just two men. That contrasts sharply with the committees during the Conservative years; most committees had a majority of men, and some committees (Saskatchewan’s and the one for Ontario West and South) had no women members at all.

There are also several visible-minority members on the seven committees announced last week, including an African-Canadian former deputy police chief from Toronto, and two members of First Nations from British Columbia.

In a news release, Ms. Wilson-Raybould said the committee members will receive training in the importance of judicial diversity from Supreme Court Chief Justice Beverley McLachlin. An accompanying fact sheet explains that they will watch her give a speech on videotape. It’s a shortened version of one she gave in Scotland in 2012: “The first attitude that the judge must cultivate is introspectiveness. A judge must be willing to take moral stock of herself....In a diverse society introspection is essential to ensuring that the phenomenon of difference confronting the judge does not skew the decision-making process.”

Of the 39 judges appointed by the Liberals since they took office in November, 2015, 24 are women.