Mr. Chair and honourable members, thank you for the invitation to address you today concerning the federal judicial appointment process in my capacity as president of the Canadian Bar Association. I am a practising lawyer. I live and practise on Vancouver Island in British Columbia.
Canadians want to know that when they appear in court, the judge is going to be impartial. That means impartial between the parties and also impartial about any government interest in the case. In other words, the public must have confidence that when its case is decided, judges are not factoring in how the outcome furthers or hinders the agenda of the government of the day.
The Canadian Bar Association's approach to judicial appointments is anchored in the principles of independence, transparency, and merit. We have long espoused this approach. For example, a resolution we adopted in 1957 states that judges should be appointed from leading members of the profession, without regard for political affiliation.
The CBA's McKelvey report on judicial appointments in 1985 provided a road map to how political influence in the judicial appointments process may be curtailed. The landmark report recommended the establishment of a judicial advisory committee process with safeguards to ensure appointments are depoliticized and based on merit. The approach was adopted by the Mulroney government in 1988.
Let me be perfectly clear about the distinction between partisanship in the judicial appointment process and judicial candidates' being involved in political activities. This is a theme that Professor Russell has just touched upon. Involvement in politics should not exclude a person from consideration for appointments. On the contrary, such involvement shows a commitment to community and country. However, recommendations for judicial appointment must not be based on partisan considerations. To this end, the Canadian Bar Association has recommended a two-year cooling-off period before those who have been active in politics are considered for judicial appointment.
The record shows that the CBA has worked with governments of all political persuasions to make improvements to the judicial appointment process. You can understand our extreme disappointment that the changes announced in November came without consulting those familiar with the process. It was all the more surprising as the advisory process has worked reasonably well. It was not perfect, being after all a human endeavour, but the arbitrary fashion in which the recent changes were introduced has serious implications for the way Canadians view the fairness of the system.
Let me turn away from the way the changes were announced to the impact of the changes themselves. First, we agree that the staggered terms for the judicial advisory committees could improve the system, although we believe a better approach would be to stagger the term of individual members of each committee to ensure continuity. Second, we welcome a special advisory committee for appointments to the Tax Court, although we believe the committee should include members nominated by legal organizations with tax expertise. However, the other changes lead to a perception of partisan considerations being brought into the deliberations. This undermines the basic purpose of the committees, namely, to ensure appointment of the best qualified candidates. We believe these changes should be reversed.
Let me outline three serious flaws.
First, our association is concerned about the designation of a representative from any specific community that could be perceived as being more in the interests of the outcome of judicial decisions than in the character of those appointed to the bench. The committee's role is to assess the merit of judicial candidates in an impartial manner. We recognize the importance of including community members on the committees to gain their perspective on the administration of justice. For that same reason, our legal system includes trials by juries of peers. However, members should not be added for the purpose of diluting the voice of lawyers and judges. This makes no more sense than reducing the role of lawyers and judges at trials just because there's a jury. It fundamentally misconceives their role.
On judicial advisory committees, lawyers bring knowledge of the pool of candidates, and judges bring knowledge of the qualities required of judges and the needs of their particular court. Judges and lawyers do not seek candidates who will prejudge particular issues or bring a particular bias to the bench. Including a representative of a special interest group could lead to the conclusion that candidates are assessed on criteria related to that group's interest, rather than solely on merit. In our view, the minister's three at-large appointments provide ample scope for community perspective.
The second flaw is removing the judge's vote except in the case of a tie, combined with the addition of an eighth member to the committee. This appears to stack the deck in favour of the minister and risks politicizing the process and creating the opportunity for patronage appointments.
Third, we recommend that the category of “highly recommended” be reinstated. Our view is that a list of exceptional candidates provided by the committees can be an added check on the influence of partisanship. If the designation is being applied in an inconsistent manner, then guidelines are the appropriate solution.
A 2006 opinion poll by Canada's Leger Marketing showed that in terms of respect, judges ranked near the top of the Canadian professions. Canadian jurisprudence is cited regularly by American, British, South African, Israeli, and Australian courts. I see these as positive signs of respect. They are a tribute to the calibre of the judges now on the bench, their independence, and their commitment to the rule of law. Obviously anything that creates a perception of compromising judicial independence will place the integrity of the Canadian legal system at risk.
Any person appearing before a federally appointed judge deserves to have confidence that the judge is qualified and will be impartial. This is a fundamental tenet of our democracy and a constitutional requirement. Accordingly, relations between the government that appoints the judges and the judges themselves must be depoliticized. This means the government cannot put political pressure upon the judiciary, nor can it be seen to have done so.
In conclusion, the recent changes to the appointment process mostly do not serve Canada well. We urge this committee to recommend that the changes to the appointment process, listed in the letter we have sent to the committee and distributed to you, be reversed.
Thank you. I'd be very pleased to answer any questions the committee members may have.