Thank you, Mr. Chairman.
Dear committee members,
I am pleased and honoured to have this opportunity today to provide information on the federal judicial appointments process and to answer any questions you may have. My understanding is that I have approximately 10 minutes to make introductory remarks, and I will do my best to keep them brief.
First, I would like to give you a brief overview of our office, especially for those of you who may not be so familiar with us. The Office of the Commissioner for Federal Judicial Affairs was created in 1978 pursuant to the Judges Act and its mandate is to safeguard the independence of the judiciary and put federally appointed judges at arm's length from the Department of Justice. In fact, our office is also independent from the Department of Justice.
I do not propose to go into the various services we provide to the 1,066 federally appointed judges, the 400 retired judges and the 350 surviving beneficiaries of judges but I will obviously be pleased to answer any questions about these. I will therefore move right into the topic of judicial appointments.
To give you some history on the federal judicial appointments process and its committees, the whole structure was announced in 1988 by the Honourable Ray Hnatyshyn, Minister of Justice, and was fully implemented in 1989 when the advisory committees created under the process became operational. At that time 12 five-member advisory committees were set up in each province and territory, consisting of one representative each from the Canadian Bar Association, the relevant law society, the chief justice of that jurisdiction, the attorney general of the province or territory, and the federal Minister of Justice. The committees were to advise the minister on whether each applicant was qualified or not qualified for appointment, and the Commissioner for Federal Judicial Affairs was given the responsibility for the administration of the process.
Now, a number of changes to the process were made by subsequent ministers of justice over the years, and I'll mention just a few of them. In 1991, for example, the two “qualified” and “not qualified” designations were replaced by three designations: “highly recommended”, “recommended”, or “unable to recommend”. As well, in 1994 the committee for Ontario was replaced with three regional committees, and the Quebec committee with two. Two other representatives of the Minister of Justice were added to the committees to increase the representation of non-lawyers. The then minister also stated his personal undertaking not to recommend to cabinet any new candidate not previously recommended by a judicial advisory committee. This undertaking confirmed the practice that has continued to this day.
Another notable change occurred in 2005 when a new code of ethics for judicial advisory committee members was drawn up and posted on our website and, along with the names of all committee members, new guidelines for advisory committee members as well as information about the number of applications for judicial office and assessments.
Today, how does this all work? Well, independent judicial advisory committees remain a very important part of the appointments process. It is the committees who have the responsibility of assessing the qualifications for appointment of the lawyers and provincial or territorial court judges who apply.
There is at least one committee in each province and territory. Because of their larger population, Ontario has three and Quebec has two. The terms of office of some of the committees have been extended to three years, while the others' terms remain two years. With the addition of one member representing the law enforcement community, each committee now consists of eight members, that is a judge who represents the Chief Justice of the province or territory; one representative of the province or territorial law society; one representative of the provincial or territorial branch of the Canadian Bar Association; one representative of the provincial Attorney General or territorial Minister of Justice; one representative of the law enforcement community; and three representatives of the federal Minister of Justice.
Judicial representatives are now automatically Chairs of the Committees but may only vote when necessary to break a tie, although the committees usually make their recommendations based on a consensus.
There is also a new Judicial Advisory Committee for the Tax Court of Canada which is comprised of five members: one who is a judge of the Tax Court and four others appointed by the Minister of Justice in consultation with the Chief Justice of the Tax Court. This committee has been established as a one-year pilot project.
The Commissioner for Federal Judicial Affairs has the overall responsibility for the administration of the appointments process on behalf of the Minister of Justice. He is expected to carry out his responsibilities in such a way as to ensure that the system treats all candidates for judicial office fairly and equally. The Commissioner or his delegate, the Executive Director, Judicial Appointments, attends every committee meeting as an ex officio member and serves as the link between the Minister and the committees. As well, administrative support for the work of the committees, including information sessions and guidelines concerning confidentiality and other procedures, is provided by the Judicial Appointments Secretariat of our office. All committee proceedings and consultations take place on a confidential basis.
So, with this structure in place, what does someone who wants to be a judge do? Qualified lawyers and provincial or territorial judges who wish to be considered for appointment as a judge of a superior court in a province or territory, or of the Federal Court, Federal Court of Appeal or Tax Court of Canada, must apply to the Commissioner for Federal Judicial Affairs.
Candidates are asked to complete a personal history form, which provides the basic data for assessment by the appropriate committee. In addition to the usual information found in a resumé, the form includes information on the candidate's non-legal work history, other professional responsibilities, community and civic activities, his or her ability to preside in both official languages, a description of the qualifications for appointment, and personal matters such as the candidate's health and financial situation. Candidates are also asked to sign an authorization form, which allows our office to obtain a statement of their current and past standing with the law societies in which they hold membership.
Upon determining that a candidate meets the statutory criteria for a federal judicial appointment--and generally, one must have 10 years at the bar--our office will forward the candidate's file to the appropriate committee for assessment, or for comment only in the case of provincial or territorial court judges who apply.
Once an application is before the judicial advisory committee--professional competence and overall merit are the primary qualifications--committee members are provided with assessment criteria for evaluating fitness for the bench. Without going into all the details, these criteria relate to professional competence and experience, linguistic competency in the other official language, personal characteristics, and any potential impediment to appointment. Committees are encouraged to respect diversity and to give due consideration to all legal experience, including that outside of mainstream legal practice. Extensive and broad consultations in both the legal and non-legal community are undertaken by the committee in respect of every applicant. The committees are asked to assess candidates now on the basis of two categories: “recommended” or “unable to recommend”.
Once the assessment has been completed, candidates are notified of the date they were assessed. Assessments are valid for a period of two years, and the results are kept strictly confidential and are solely for the minister's use. Each candidate's assessment must be certified by the commissioner or his delegate prior to its submission to the minister.
Provincial or territorial court judges generally undergo the same process. However, in their case, they are not assessed per se by the advisory committees, but their files are submitted to the appropriate committee for comment.
To conclude, when the minister wishes to fill a vacant seat, our office will prepare the necessary recommendation for the Minister's signature with respect to the appointment of puisne judges, and for the Prime Minister's with respect to the appointment of Chief Justices.
Thank you, Mr. Chairman, I would be pleased later to answer any questions members of the committee may have.