Juridics: Fed Canada: Canadian Judicial Council pouts its way to acceptance of reforms in Judicial Advisory Committees

The effort of the Conservative minority govt of Canada to reform the existing Judicial Advisory Committees has been poutingly accepted by the main national body of Federal judges, the Canadian Judicial Council. At least, as I read CJC's rather arch Overview of the judicial appointment process (released Feb20,2k7), the CJC has now accepted the reforms suggested by the government.

The Canadian Judicial Council accepts, despite these changes to the Advisory Committees, that judges can continue to participate in the deliberations of the Advisory Committees,...

The remainder of the sentence continues the whining quality of the document's overall tone, crystallizing it into an unabashed full pout:

...but only if the principle of judicial independence is respected and judicial candidates are recommended strictly on the basis of merit.

Of course, this is a signal that the CJC still doesn't want to face the consequences of the reform, which seeks to protect the judiciary from the kind of stacking hitherto practised by Canada's Liberal govts of the last 40 years. In part, we may expect that in this latter subordinate clause the CJC is trying to position itself for future quarrels it hopes to provoke and to lay a basis for obstruction.

The two buzzwords that the CJC constantly invokes are "independence" and "merit." Both these terms need a law-philosophical analysis in conjunction with the fact that different definitions prevail from law philosophy to law philosophy. Nowhere is it mentioned that a plurality of las philosophies must be represented in the judiciary, since no single law philosophy can give us judicial independence. The monoculture of a single law philosophy would make the judiciary dependent on that sole philosophy, without the benifit of other philosophies competent to call its fiats into question, to open other avenues of deliberation, to ensure an indepth dialogue among the law phliosophies in order to reach judgements and render sentences that are more fair, and hence more meritorious. Is "merit" a matter of formal degrees from the "best" law schools, as ranked by the graduates of those very over-represented schools? Is "merit" itself an absolutely neutral concept? A technical concept only?

I find the CJC's statement to be very shallow from the standpoint of legal philosophy, and very astute politically from the standpoint of keeping a closed guild closed.

The full text of CJC"s Overview follows below, with the above key passage in bold.

Canada's system of government comprises three branches: the Legislative Branch (Parliament), the Executive Branch (the government) and the Judicial Branch (the judiciary). Under Canada's Constitution, each Branch has important responsibilities that are distinct from one another.

Superior Court judges are appointed by the federal government. Under Canada's constitution, and established law, the status of judges is recognized as fully independent. Once appointed, a judge can serve until age 75 and cannot be removed from office except by joint address of both Houses of Parliament.

Judicial independence is of fundamental importance in a democracy. Those who interpret the laws must do so without fear or favour, and without regard to whether their decisions are popular. This is a cornerstone of the rule of law.

In that context, the most important goal in appointing a judge is that only those of highest merit and legal qualifications are selected, independent of any political or ideological considerations.

Creation of the Judicial Advisory Committees

The Judicial Advisory Committees (JACs) were created in 1988 following recommendations of the legal community, and others, that an independent process should be followed to assess the qualifications of candidates for appointment to the Bench. The model adopted by the government was the result of more than two years of consultations and enquiries with Canadians, including judges, lawyers and scholars. The key element in the adopted model was the creation of advisory committees independent of the appointing government. These committees were intended to screen all candidates for competence, to ensure that merit would govern the selection process.

At the time, the Honourable Ray Hnatyshyn, Minister of Justice, wrote "The concept of merit is central to the new appointments process. I firmly believe that no government can afford to approach the issue of appointments to the bench without a commitment to selecting the best person available, determined by objective criteria. The stakes for our Canadian society are too high to settle for anything less."

Since then, successive governments have adopted this independent advisory committee model, making occasional changes. Each time, the legal community was fully involved in consultations regarding proposed changes. In late 2006 however, the government unilaterally announced changes to the composition of the committees and the manner of their deliberations.

Composition and functioning of the Advisory Committees until 2006

Judicial Advisory Committees, since they were created, maintained their independence of the appointing government, while including representation from the federal government, the provincial government, the provincial law society, the Canadian Bar Association and the judiciary.

At their creation in 1988, committees were asked to assess if candidates were "qualified" or "not qualified." In 1991, further to a government review of the process, the committees were asked to use new categories: "recommended," "highly recommended" or "unable to recommend." The change was made in recognition of the fact that some candidates are much more qualified than others.

The size of the committees was increased from five to seven members in 1994, giving the federal government three members, instead of just one who represented the Minister. The two additional members were to be a lawyer and a lay person. The Minister of Justice at the time said that the new structure would "facilitate the appointment of committees that more fully reflect the diversity of society in each jurisdiction and, in the case of lawyer members, of the legal community." At the same time, it was understood that the majority of members would not be appointed by the government.

Recent changes to the Advisory Committees

One change recently made to the functioning of the Advisory Committees is to eliminate the distinction between "recommended" and "highly recommended" for the assessment of candidates. This raises questions about whether the most qualified individuals will continue to be identified for appointment.

The qualifications needed to be a judge are extensive. In addition to a number of personal qualities and competencies, candidates for judges must demonstrate proficiency in various areas of the law.

This is particularly important because Canada's Superior Courts hear cases in many areas that affect Canadians in their day to day lives: family law, commercial law, torts and liability law, administrative law and criminal law. Most cases heard by Canada's Superior Courts have nothing to do with criminal law. Many non-criminal cases also involve disputes between citizens and their government.

Another change made was in the number of members who serve on the Advisory Committees. The government is now appointing a fourth member to serve on each Committee. A related change is to remove the right to vote for the representative of the judiciary, except in the event of a tie. This means that there are seven members who are ordinarily entitled to vote, with four chosen by the Minister of Justice.

Because the majority of voting members are now appointed by the Minister, the advisory committees may neither be, nor seen to be, fully independent of the government. This puts in peril the concept of an independent body that advises the government on who is best qualified to be a judge. Judicial independence is not the private right of judges but the foundation of judicial impartiality and a constitutional right of all Canadians [footnote 1]. As the Supreme Court of Canada has stated, "Litigants who engage our judicial system should be in no doubt that they are before a judge who is demonstrably independent and is motivated only by a search for a just and principled result. [2]"

The Canadian Judicial Council accepts, despite these changes to the Advisory Committees, that judges can continue to participate in the deliberations of the Advisory Committees, but only if the principle of judicial independence is respected and judicial candidates are recommended strictly on the basis of merit.

Choosing the best judges for Canadians

The responsibility of appointing Superior Court judges rests with the Governor-in-Council. It is the government that has the authority and mandate to select and appoint judges.

That responsibility, however, must be exercised with due regard to the responsibilities and authority of the other two branches of government. The fundamental importance of appointing only the most meritorious candidates, irrespective of political or ideological conviction, should guide all three branches of government in working together to serve the interests of all Canadians.

The Canadian Judicial Council will continue to work toward the fundamental goal of maintaining an independent judiciary in Canada.

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1 Canadian Judicial Council, Ethical Principles for Judges.

2 Provincial Court Judges' Assn. of New Brunswick v. New Brunswick (Minister of Justice); Ontario Judges' Assn. v. Ontario (Management Board); Bodner v. Alberta; Conférence des juges du Québec v. Quebec (Attorney General); Minc v. Quebec (Attorney General), [2005] 2 S.C.R 286, 2005 SCC 44.

The reform of the Canadian judicial mind and the jurisprudence it begets can only be in its infancy, but the Conservative minority govt will not and can not be more than a fine-tuner of existing arrangements. The real work belongs to the field of scholarship in legal philosophy. And that will require at least a generation of work by gifted and civically-minded persons who see thru the Liberal facade that can not see beyond its own limited philosophical horizons--where it has stacked not only the judges of the courts but words like "equality," "independence," and "merit."