Ontario Premier Doug Ford's defence of a partisan lens on judicial appointments was justifiably lambasted.Nathan Denette/The Canadian Press
Critics pounced on Ontario Premier Doug Ford for his vow last month to appoint “like-minded judges” to provincial courts, and especially for his shocking statement that, “I’m not going to appoint some NDP or some Liberal” to serve as a judge.
Mr. Ford had installed two former political aides on the provincial committee that advises his government on judicial appointments, and then doubled down on his right to do so when the backlash came. The partisan lens he trained on judicial appointments was justifiably lambasted.
But his comments could be taken as a politician saying the quiet part out loud: namely, that almost all governments across Canada have injected too much of their own interests into the process of appointing judges.
The politicization of judicial appointments in Canada has been going on for a long time, and the problem arguably starts at the federal level, where most judges are named.
Provincial and territorial governments appoint judges to provincial and territorial courts; Ottawa names them to the federal courts, to the superior and appeals courts of the provinces and territories, to the tax court, and to the Supreme Court of Canada.
Like the Ford government, the Trudeau government has zero issues with an appointments process that, in both appearance and in fact, is far from impartial.
There is a simple fix for this problem at both the federal and provincial levels, and that is to take the politicians out of the process of selecting candidates for the judiciary.
This has been done in Quebec, where a 2003 scandal involving the appointment of judges led to a public inquiry in 2011, which in turn led to what the Canadian advocacy group Democracy Watch says is one of the best judicial appointment systems in the world.
Unlike in Ottawa and Ontario, the Quebec government has a strictly limited say on who sits on the five- or six-person committees that nominate judges. At best, the justice minister can name one person, while all the others are named by the chief justice of the court of Quebec or their designate, members of the bar and legal professionals.
The committee recommends three names for each opening to the justice minister, who then chooses one of them. The minister has the right to refuse all three if they see fit.
Best of all, the Quebec system is codified in a law that expressly forbids the committee and the minister from considering the political affiliations of candidates.
In the rest of Canada, there is much more latitude for governments. Cabinets have the power to name judges, but there are no set rules on how that should be done.
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In order to create an appearance of impartiality, Ottawa and the provinces have advisory committees that recommend candidates to their respective cabinets. But while it varies from province to province, governments often have a great deal of control over who sits on those committees.
In Ottawa, the government names six of the seven members (three of those are from lists submitted by the legal community) of each of the 17 judicial advisory committees that recommend candidates for federally appointed judges. In Ontario, the provincial government names 10 out of 13 members of the committee that nominates provincial judges. In both cases, cabinet can reject every proposed candidate.
It gets worse. A 2020 report in The Globe and Mail found that the Trudeau government allows its MPs, ministerial staff and even friends of the party to vet the lists of candidates, and even checks to see whether they donated to the party.
As well, any promotion of a judge from a lower federal court to a higher one is at the complete discretion of the federal justice minister.
In Canada, judges’ independence is protected by three pillars: security of tenure; financial security; and administrative independence. Governments can’t fire a judge or cut their pay, and they can’t assign a judge to a case.
There needs to be a fourth pillar: the legislated impartiality of the system for selecting judicial candidates, as Quebec has done. Democracy Watch took the federal government to court in 2022 over this very question; the case will continue next month, and Canadians ought to be cheering it on.
Because, at the heart of the matter is the whether the selection of judges in Canada is demonstrably and undoubtedly beyond political influence. At the moment, this is simply not the case, and it needs to be fixed.