The Canada section of the International Commission of Jurists (“ICJ”) has embarked on a two-year project to examine the Canadian federal judicial appointments process and to develop recommendations for its reform.
Why a project on judicial appointments in Canada?
The Canadian judicial appointments process has long been a subject of debate. Lawyers practising in this province know that we have experienced long delays in the filling of judicial vacancies. It is difficult to understand why that should be so; a shortage of judges to do the public’s work would seem to be in no one’s interest. There is also a perception that the Canadian appointments process lacks transparency and is often politicized. Whether that is fair or not, the perception itself is worrisome as it undermines public confidence in the judicial system. Another concern is with a lack of diversity in the judiciary, including on gender and ethnic grounds.
Criticism of the judicial appointments process was reignited by the Nadon affair, in which the Supreme Court of Canada held Justice Nadon ineligible for appointment to that court for constitutional reasons. Following that decision and the Prime Minister’s and Minister of Justice’s subsequent allegations that the Chief Justice had acted inappropriately in flagging the constitutional issue ahead of the appointment, the ICJ urged the Government of Canada to “review the law and practice for the appointment of judges in light of contemporary international standards and practice”.
No such review being forthcoming from the government, ICJ Canada has resolved to undertake this review itself in order to address criticisms of the process and suggest reforms that will respond to them.
What does it involve?
The project has two aspects. First, we seek to elucidate the current Canadian process for the appointment of federal judges. That process occurs largely behind closed doors at the moment, and the rules governing it appear, at points, uncertain and unstable. Second, we seek to survey current international norms and national processes from among leading rule-of-law jurisdictions around the world to identify best practices for adoption in Canada.
ICJ Canada is well-positioned to make a serious, important and balanced contribution to this issue. We have established a project committee, based in Vancouver, to coordinate and conduct this project.
Commencing in the fall of 2015, ICJ Canada began gathering information from provincial jurisdictions across Canada on the federal and provincial judicial appointments processes by providing questionnaires to lawyers in five jurisdictions – Ontario, Quebec, British Columbia, Nova Scotia and Alberta. 20 lawyers across Canada have been involved in this information-gathering process and have been reaching out to other members of their respective legal communities. We have published an Interim Report setting out the findings we have drawn from the responses received with respect to the federal judicial appointments process. The Interim Report also provides recommendations to address areas that evidently require reform to further advance the principles of judicial impartiality and independence and to promote greater diversity in the judiciary, ensuring it is representative of the communities it serves.
On August 17, the Federal Department of Justice held a consultation on the Interim Report with Vice President for British Columbia Rebecca Robb -the lead on the project-, Board Member from the Atlantic Provinces Professor Richard Devlin, and ICJC President, Professor Errol Mendes.
Currently, we are collecting information on how judicial appointments are made in Canada and other leading jurisdictions. The data collected will be incorporated into a final report and form the basis for our recommendations for reform.
- Read ICJ Canada's Interim Report on judicial appointments (Published August 2016)