Judicial appointments should be about merit, not politics
by Jacob Ziegel
This commentary was first published in the National Post on Aug. 31, 2010.
The Canadian media have shown intense interest in ex-Quebec justice minister Marc Bellemare's allegations that Premier Charest endorsed political interference in judicial appointments to the Quebec Provincial Court. One suspects, however, that the media are much more interested in the credibility contest between these high profile individuals than in the integrity of Quebec's system of judicial appointments.
The reality is that the Quebec system basically mirrors the same potential for abuses as has existed in the federal system of judicial appointments since the earliest days of Confederation. At the federal level, this legacy has arisen because, for many years, Conservative and Liberal governments have regarded judicial appointments as a rich reservoir of political patronage.
Not surprisingly, where the feds led, the provinces have not hesitated to follow, but with this difference. In the 1980s and early 1990s, British Columbia and Ontario broke rank with tradition and introduced a merit-based system of provincial judicial appointments. Since then the other provinces have followed suit with varying degrees of effectiveness.
In 1988, the Mulroney government introduced changes that appeared to have the hallmark of a merit based system of federal judicial appointments. However, the reality was different. The Mulroney-inspired changes involved the establishment of judicial appointments advisory committees (one or more for each province), but the committees were toothless. Their mandates were limited to advising the federal government whether a candidate was recommended or not recommended as suitable for judicial appointment. The committees were not entitled to rank the candidates, nor were they consulted in filling actual vacancies on a court. Similarly the committees have no input in the promotion of judges from the trial level to an appellate court or in the transfer of a judge from the provincial bench to the more prestigious, and better paid, superior court of the province. The committees are also not consulted in the appointments of chief justices of the trial bench and courts of appeal of the provinces or the chief justices at the trial and appellate levels of the Federal Court.
Since gaining office in 2006, the Harper government has weakened the federal system of judicial appointments still further. It has done so by depriving the sole judicial member of the advisory committees of a vote on the committee and by giving the federal government nominees on the committees a majority vote. Given all these factors, it is not surprising that a significant number of the judicial appointments made by the Harper administration have been rewards for political services or identification with right wing ideology, or have been made on the basis of personal friendships.
There may be a number of differences between the Quebec and the federal system of judicial appointments, but it is not clear how significant they are in practice. One difference is that the Quebec committees are established ad hoc to interview candidates and to make their recommendations to the minister of justice as vacancies arise on the provincial court. Nevertheless, as is true of the federal committees, the Quebec committees are not empowered to recommend a particular candidate even though the committee may feel the candidate is the best person to fill the vacancy.
It also seems clear that the Quebec justice minister has full discretion in making his selection from among the approved candidates. It would be surprising if the minister were not also exposed to various pressures to appoint a candidate favoured by his Cabinet colleagues - the mirror image of the game that regularly plays itself out at the federal level. In Mr. Bellemare's case the pressures may have been more explicit (especially since allegedly they came from non-ministerial sources), but this is only a difference of degree and not of kind between the federal and Quebec systems. What is surprising is that Mr.. Bellemare seems to have assumed that the decision of whom to appoint was solely his to make; this naivete was probably due to the fact that he was new to the justice portfolio.
What clearly emerges from this discussion of the Quebec and federal judicial appointments system is that there is no acceptable halfway point between a truly merit based system of appointment and one that is heavily diluted, if not frequently dominated, by political and personal considerations. It must be one or the other; it cannot be both. If it does nothing else, the Bastarache Commission will earn our gratitude if, to paraphrase Pierre Elliot Trudeau's immortal words, it makes it clear that partisan politics should play no role in the appointment of provincial court judges.
