Democracy Watch did not include the Supreme Court in its lawsuit.Colin Perkel/The Canadian Press
A citizens’ group asked a court on Monday to declare the federal system of appointing judges to be unlawful, saying it is full of partisan political considerations and therefore is at odds with the principle of judicial independence.
The novel lawsuit from Democracy Watch, a non-profit group not aligned with any political party, relies in part on unwritten constitutional principles requiring independent judges in whom Canadians have confidence.
“Each time an individual goes before a court right now, we cannot guarantee that those individuals are being met with the required independence and impartiality,” Ashley Wilson, a lawyer for the group and its co-ordinator, Duff Conacher, told Justice Richard Southcott of the Federal Court.
In a written filing, the group cited news reports that the governing Liberals check candidates in a party database, and that a far higher proportion of the successful individuals have donated money to that party compared with others.
The filing cited reports that in 2018, Liberal cabinet minister Jim Carr, and his spouse, Justice Colleen Suche of the Manitoba Court of Queen’s Bench, had offered the justice minister identical lists of recommendations. (The Canadian Judicial Council, a disciplinary body, found that the reports were accurate, and said Justice Suche should not have communicated her views to the executive branch of government.)
Ms. Wilson also pointed to a 2007 statement from former prime minister Stephen Harper: “We’re bringing forward laws to make sure that we crack down on crime – that we make our streets and communities safer. We want to make sure our selection of judges is in correspondence with those objectives.”
“He made a concerted effort to appoint judges who would be within the same frame of mind,” she said.
There are just under 1,200 federally appointed judges on the superior courts of provinces, the Federal Court and the Tax Court of Canada. Democracy Watch did not include the Supreme Court in its lawsuit.
Ms. Wilson said other provinces and countries have other systems the federal government could draw on. She said she was not asking for federally appointed judges to be thrown off the bench, but for new judges to be appointed differently.
In response, the federal government argues that the courts have no authority to address how the appointment process works, and that most of Democracy Watch’s evidence is nothing more than hearsay, or opinions from lawyers, legal organizations and newspaper editorial boards.
“Our friends have challenged the entire system of the judiciary. They challenged the appointment of every judge,” federal lawyer James Schneider told Justice Southcott. Such a challenge “should not depend on what one finds in a newspaper,”
Federal lawyer Andrea Bourke explained how the process works: First, one of 17 judicial advisory committees across Canada screens candidates and can recommend, highly recommend or not recommend them. Four of the seven members of each committee are nominated by legal bodies outside of the federal government. The justice minister may do their own checks of the recommended or highly recommended group, before making recommendations to cabinet.
“Their proposal,” Ms. Bourke said of Democracy Watch’s legal challenge, “would upend the constitutional structure and undermine public confidence in the judiciary.”
Justice Southcott reserved his decision.