Q:How are judges appointed? Is it politics or merit?
A:It depends on the level of the court and the province.
There are federal and provincial levels of court appointments. The federal attorney general/minister of justice appoints to the Supreme Court of Canada, the Federal Court and Federal Court of Appeal and the Courts of Appeal and Courts of Queen’s Bench for the provinces and territories. They are our superior courts.
The provincial attorney general/ minister of justice appoints to provincial courts and courts of inferior jurisdiction.
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Every person who seeks to be appointed as a judge has to go through a vetting process, no matter what level of court is involved. Federally, there is a review committee appointed for each province, consisting of a judge, representatives of legal organizations and citizens. Provinces also have review committees but the compositions vary.
The stars have to align for any one person. Generally there is a requirement that proficiency must be demonstrated in the practice of law for a minimum period. It is generally expected that judges be free of controversy. They should not be involved in any litigation themselves at the time of appointment. A careful review of their status within the legal community and the general community is done.
These review committees result in someone being approved, or not approved, for potential judicial appointment. This alone doesn’t mean they will be appointed. It means the person goes into a pool of candidates.
The idea is that this process keeps such appointments from being purely political.
It is fair to say that over the past number of years, the work of these committees has improved and that more qualified people are being appointed to the bench. No system is perfect, but there has generally been a high quality of judicial appointees.
Squabbles have erupted over appointments. In Ontario, there is litigation underway over a judicial appointment that never materialized.
In that case, a former crown prosecutor from Brantford is suing the Ontario government for $1.2 million, which is a calculation of lost salary and benefits.
The claim alleges that this person received a call from the minister telling him he was appointed. Subsequently, it is alleged he got an official call saying they’d made 12 calls but only had 10 openings. He was told to wait and he waited almost two years but the promised appointment didn’t materialize.
He has sued the provincial government and claims there was a binding agreement that they offered him a judicial posting. He accepted, but they didn’t deliver.
He said this is different than other claimants who had vague promises from elected officials. The province has applied to strike his claim.
He says he no longer wants the appointment but wants money instead.
The outcome of this case is far from certain, but I suspect it doesn’t fill the average Canadian with a warm fuzzy feeling about how judges are selected and how the entire process works.
This case is an aberration and out of the norm. The revised system with the provincial committees has done a good job of assuring quality in appointments, and the Canadian judicial system continues to function well.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon.
