This article first appeared in The Lawyers' Weekly, November 20, 2009.
Some of us entertained a slender hope in 2006 that the Harper administration, after its election into office, could be persuaded not to use federal judicial appointments to feed the patronage mill. After all, as Opposition leader, Harper had fiercely denounced the Liberal party sponsorship scandal in Quebec and had promised to introduce an accountability act if the Conservatives won the next election. In a similar vein, Vic Toews, the future first justice minister in the Harper cabinet, endorsed a 2005 report of the House of Commons Justice Committee criticizing patronage appointments and calling for exclusively merit-based appointments. Toews was deputy chair of the committee.
Alas, our hopes were quickly dashed. In the fall of 2006, Toews announced important changes in the composition of the federal judicial appointments advisory committees, changes that were calculated to further weaken what was at best only a screening committee of applicants for judicial office. The changes involved increasing the number of federal government nominees on the committees, converting the status of the single judicial representative on the committees to a voteless chair and adding a representative from Canada's police forces to ensure that future judges appreciated the importance of a vigorous enforcement of the federal Criminal Code.
When it came to actual appointments, Harper has shown that he's just as willing to use the power for patronage purposes as was Chrétien. Here are some random examples. Pierre Blais, the new chief justice of the Federal Court, has a solid Conservative Party background, so, to a lesser degree, do at least five other judges appointed to provincial or federal appellate courts since 2006.
In Manitoba, two judges on the provincial Bench with Conservative Party ties were elevated to the Manitoba Court of Appeal. One of the appointees, Justice Glenn Joyal, apparently found the work uncongenial, resigned his position and requested to be transferred to the Court of Queen's Bench. The request was granted. Certainly, members of provincial courts should be eligible for elevation if their merits are evaluated by an independent committee. However, there is no such safeguard under the existing system of appointments because, for totally unpersuasive reasons, it is deemed demeaning to subject sitting judges to screening by the existing advisory committees. As a result, the federal government has a completely free hand in elevating sitting judges and is free to do so without consulting anyone.
A particularly egregious example of political patronage involved the appointment of Justice Bradley Green in New Brunswick, first to the Queen's Bench Court of New Brunswick in 2008, then, only a year later, to the New Brunswick Court of Appeal. Green was only called to the New Brunswick Bar in 1991. He was politically active during his law school years and remained very active following his call to the Bar. He was elected an MLA in 1998 and held several portfolios in the Lord administration from 1999 onwards, including a stint as attorney general and minister of justice, before the Conservatives were defeated in the provincial elections of 2006.
It is not difficult to surmise why Green was appointed to the Bench in 2008. One is puzzled to know, however, the factors that justified Justice Green's elevation to the Court of Appeal only a year after his appointment to the trial Bench.
One could go on providing further examples of how patronage considerations continue to permeate judicial appointments in Canada, but it would serve little purpose. The story has been told so many times before. What is concerning is not that Harper is pursuing a path that his predecessors have travelled since the earliest days of Confederation. It is that the legal profession and Canada's major political parties lack the political will to rid Canada of a deeply flawed system that violates the most fundamental principles of the rule of law. The current system is also grossly unfair to the many well-qualified, and often highly qualified, lawyers who apply each year for federal judicial appointments, but who don't stand a chance because they lack the right political connections.
The truth is that no change is likely to take place until federal legislation is enacted to deprive all future federal governments, not just the Harper administration, of their patronage powers and to ensure that merit, not party loyalty or personal connections, is the litmus test for judicial appointment. That point has been made many times before, before Parliamentary committees and in published reports. The provinces, especially British Columbia, Ontario and Quebec, have shown, at the provincial level, that a merit-based system is entirely feasible and works well. In England, the role of the Lord Chancellor in making superior court appointments to the British Bench was replaced in 2005 with the establishment of a wholly independent Judicial Appointments Commission with a very broad mandate that leaves the British government with very little discretion in making superior court appointments.
It is time for Canada to bite the bullet too.
Jacob Ziegel is a professor of law emeritus at the University of Toronto.