BENCHES STACKED

Edmonton Journal
2005.06.18
Benches stacked with patronage appointments: expert
Federal gov't ignores bar association advice to reform court system
By Richard Foot, CanWest News Service

Twenty years ago, Peter Russell toiled at the centre of a high-profile bid to clean up the way the federal cabinet appoints judges in Canada and to rid the system of its entrenched political influences. Conservative prime minister Brian Mulroney had just come to power amid anger that the Liberals had appointed a raft of partisan judges during the party's dying days in office. Russell, a constitutional scholar at the University of Toronto, was research director for a blue ribbon legal panel struck by the Canadian Bar Association to study how Canada could appoint the best, rather than the best-connected, judges to its courts. Two decades later, he says little has changed. The main recommendations of the 1985 report have not been enacted, and Ottawa's judicial appointment system still represents, says Russell, a "patronage program on a grand scale."

The federal cabinet names about 50 judges each year to superior trial and appeal courts across the land, plus numerous other judges to the Federal and Supreme Courts. Every appointment is made at the exclusive discretion of the prime minister and his cabinet. "They appoint more judges in Ottawa than in any other federal system around the world," says Russell. "In Canada, the appointment of federal judges is highly centralized, so the potential to have a very political judiciary is very strong."

Recent allegations at the Gomery inquiry that the Liberals used Quebec judgeships as patronage plums for lawyers who worked on the party's election campaigns prompted Justice Minister Irwin Cotler to publicly confirm he would appoint another expert panel this summer to review the system. Despite his promise, Cotler has denied partisan reward plays a role in the process. Whatever the truth between his assessment and Russell's, one possible consequence of past patronage has become evident since Russell and his colleagues released their 1985 report.

Canada's judicial system has yet to recover from a series of wrongful murder convictions in recent decades. From David Milgaard in Saskatchewan to Randy Druken in Newfoundland, several high-profile inquiries are examining what flaws in the justice system led the courts to improperly imprison people. Newfoundland lawyer Bob Simmonds, a member of the Association in Defence of the Wrongfully Convicted, says the incompetence of some judges on Canada's trial courts, the result, he says, of an appointment system based on patronage rather than merit, is partly to blame. "Poor judges have been a significant contributing factor to wrongful convictions in this country," he says. "Criminal law has become more complex, trials have become longer, and if we don't get the judges that are the best candidates for the job, is it any wonder we have wrongful convictions? "That's not to say Crown and defence lawyers aren't also part of the mess, but there's more than one party to this, and judges contribute to the problem, too."

More than 95% of Canada's criminal cases are heard in provincial courts, where judges are appointed by the provinces. Provincial courts were once rife with patronage. But in recent years, says Russell, most provinces have removed political influences from their appointments system by requiring attorneys general to name judges from a short list of three or five "best" candidates drawn up by an independent committee of experts following a public recruitment and application process. Many judges appointed to provincial courts have experience in the criminal justice system. In the upper trial courts, however, where murder cases are heard, and where judges' salaries are almost double what they are in provincial courts, most judges come from commercial or corporate legal backgrounds, says Simmonds, sometimes with little or no criminal or litigation experience. "Corporate and commercial lawyers have a very different life from criminal lawyers working in the trenches of the justice system," adds Russell. "They're more likely to use their political connections to get appointed federally, even though they may know very little about the criminal work of the courts."

Bill Johnson, a Regina lawyer who is past president of the Canadian Bar Association, says in spite of the country's history of wrongful convictions, Canada's federally appointed judiciary isn't as poor as Russell and other critics paint it to be. He says there is far less political influence in the appointments system today than there was in 1985, when the national bar association released its report. Still, Johnson admits patronage remains a troublesome part of the process, and should be removed.

Johnson and Russell agree the solution lies in fully implementing the recommendations of the 1985 report, which was authored by an expert panel chaired by prominent New Brunswick lawyer Neil McKelvey following interviews with dozens of Canada's most senior jurists and lawyers. The report urged Ottawa to establish, as in the provincial court system, independent advisory committees made up of legal and lay members in each province who would submit the names of judge candidates to the cabinet. Those committees were set up in 1988, but Russell says their work amounts to little more than "camouflage" for Ottawa's judicial patronage network. When a court vacancy occurs, the relevant committee examines dozens of applicants and breaks down candidates into "highly recommended," "recommended" and "not recommended" categories. Russell says the process is mostly a sham because virtually any lawyer who has not run afoul of the bar can make it onto the "recommended" list. The problem, critics say, is that the small number of "highly recommended" candidates are often passed over by the federal cabinet, in favour of a patronage appointment for a less qualified figure on the "recommended" list. Simmonds says one of the worst-kept secrets among the legal community is that the best-qualified lawyers are frequently denied judgeships they, and the public, deserve.

The 1985 bar association report said while the federal cabinet should retain the right to appoint federal judges, it should be required to do it from a carefully crafted list of three or four best-qualified candidates, as recommended by an independent advisory committee. Is the federal cabinet and its powerful regional ministers ever likely to accept such a change, and give up the patronage power of judicial appointments? "Not a chance," says Simmonds.