1. This Dissenting Opinion is presented to address certain inadequacies of the Report on the Federal Judicial Appointments Process of the House of Commons Standing Committee on Justice and Human Rights (Report).
1.1 The Report is meant to address the concerns raised in an opposition motion of 27 February 2007. One of those concerns raised involved alleged “signs of partisanship and ideological influence” perpetrated by the Conservative government in the way in which it relies on Judicial Advisory Committees (JACs) to provide advice to the Minister of Justice.
2. The Report is flawed at the most fundamental level because it is based on partisanship and the myth of a perception rather than on tangible evidence that modifications to the JAC process now produce different and less meritorious candidates.
2.1 Unfortunately, the Report itself is compromised by what its authors claimed they wanted to avoid: a partisan and ideological influence. This influence was asserted by the majority of committee members who wished to raise partisan concerns rather than to acknowledge that the new process has in fact improved, not impaired, the process for judicial appointments. Moreover, the very structure of the Report is suspect. It is normal Parliamentary procedure to produce only substantive recommendations in a committee report. However, this report allowed the unusual practice of including “suggestions”, thus blurring the lines between intent and conclusion. It is apparent from this that the majority recommendations were based on championing a “perception” that could safely be used for short term partisan gains. Conversely, the majority “suggestions” clearly lacked the moral fortitude to draw any other firm conclusions. Essentially what happened was an acknowledgement by the majority that a process based on flawed assumptions would never produce any concrete conclusions.
2.2 The Report advances no credible evidence that changes to the JAC process have in any way affected the quality of judicial appointments made since this government took office, or that any of the post-2006 JACs are functioning in a manner that would suggest any actual threat to judicial independence or to the assessment of candidate competence. To suggest as much would be an unsubstantiated attack on the quality and legal excellence of the 98 persons appointed to superior courts by this government since it took office.
2.3 The Minister of Justice continues to be guided by the principles of merit and legal excellence in the selection and appointment of judges to Canada’s provincial superior and federal courts. Furthermore, the Minister continues to receive advice from the JACs so that he can propose meritorious individuals who best represent for a receiving court the appropriate gender balance, bilingual capacity and cultural diversity.
2.4 Moreover, factors highlighted in the comments provided by the JACs to the Minister, such as community involvement and service to the profession, also complement the overall assessment of candidates for the Canadian judiciary.
2.5 Each of the 98 judicial appointments to the Canadian judiciary made by this government reflects the tangible embodiment of the principles of judicial appointments based on merit and legal excellence.
2.6 With respect to balance and diversity, the Conservative government has now made judicial appointments in nine of the 10 provinces (PEI has had no vacancies), in one of the three territories (Nunavut and Yukon have had no vacancies), and to each of the Supreme Court, the Federal Court of Appeal, the Federal Court and the Tax Court of Canada.
2.7 More than one-third of the appointments have been women and more than one-third have been bilingual men and women, who at the time of their appointment were capable of hearing a trial in either of Canada’s official languages. A further portion of those appointed (approximate 5 - 15%) have expressed a willingness to achieve a level of proficiency in the other official language that will enable them to carry out their judicial role in both official languages.
2.8 As well, there have been a number of Canadian cultural diversity firsts facilitated by this government’s judicial appointments: the first black woman named to the Quebec Superior Court, the first black woman named to the Tax Court of Canada, and the first, First Nations man to sit as a judge of the Federal Court.
2.9 Finally, this government recognizes that the required combination of merit and legal excellence is also found among judges of the provincial and territorial courts. Among the provincial and territorial court judges that have expressed an interest in becoming provincial superior court or federal court judges, seven have been selected to fill these positions since January 2006. Two of these seven provincial court judges (both bilingual) have been elevated directly to their provincial Court of Appeal. In contrast, only 10 provincial court judges were elevated in the entire period 2000-2005.
2.10 The 2006 JACs have been in operation for almost six months now, and the advice offered to the Minister as to which individuals demonstrate legal excellence and merit has not changed. Decisions on which candidates are qualified continue to be made by consensus in almost every case. The chair of each of the JACs continues to fulfill an active role in determining what his or her committee considers the best qualities of a new judge.
3. The Report is further flawed at a general level because its findings and recommendations are either incomplete, contradictory, or simply unsupported when the whole body of evidence received by the Committee is considered.
3.1 At a general level, the Report is flawed in several ways:
(1) It fails to acknowledge the nature of the Judicial Advisory Committee process.
The Report fails to acknowledge that the Judicial Advisory Committee process came into being and continues to exist to assist, not to override, the Minister of Justice in his or her preparation of advice to the Governor-in-Council, who in turn advises the Governor-General, who under s. 96 of Constitution Act, 1867 has the power and responsibility to appoint superior court judges in Canada.
(2) It fails to acknowledge that the JAC process has been modified numerous times since the inception of JACs in 1988.
Deliberations of, and changes to, the JAC process have occurred several times, particularly in 1988, 1991, 1994, 1999, 2005 and 2006. There was no evidence presented to the Committee that all or even most of the earlier changes were preceded by extensive consultation outside of government and departments. Some seem to have involved public consultation while others did not. While no evidence was presented, the public record demonstrates that some of the changes made in 2006, such as the return to only two categories of assessment, actually re-establish procedures that prior JACs have employed. While the Report’s Second Recommendation proposes to restore a three category assessment process, it fails to acknowledge that the two category process has been successfully employed in the past. It further fails to recognize that certain witnesses, whose testimony was otherwise valued by the majority, expressed indifference at best towards the idea of restoring three assessment categories.
(3) It ignores testimony presented by some witnesses.
Members of Canada’s law enforcement community, a retired judge and others presented evidence to the Committee that the JAC process, while not perfect, was working well and with broader representation would continue to provide the Minister with sound advice towards the identification of individuals who possess the legal merit and distinction needed to undertake the role of judge in Canadian courts.
3.2 In its second paragraph, the Report states that “Recently, however, changes have been made to the composition of the judicial advisory committees that help choose judges and the method by which those judges are selected”. This statement wrongly suggests that the JACs have a direct role in the s. 96 power assigned exclusively to the Governor General. No legislation, primary or secondary, exists to substantiate this claim.
3.3 The Report presents contradictory reasoning as to why the presence of a law enforcement representative is supposedly inappropriate on a JAC. In the first paragraph under Part I, entitled, “Composition of the Judicial Advisory Committees”, the Report states that the “problem with adding the police to the advisory committees, however, is one of perception”. In the second paragraph, the Report continues, “The fact that a police representative sits on an advisory committee, therefore, without being counter-balanced by someone representing defence counsel, for example, strengthens the apprehension that judges have been selected from among candidates who support police interest”. Finally, in the final sentence of the section, just prior to the presentation of the Report’s first recommendation, the Report states that “the Minister of Justice had the power to appoint a police officer to the Judicial Advisory Committees as one of his or her selections to represent the community”.
3.4 These statements appear to contradict one another. On the one hand, the argument in the Report appears to be that even one law enforcement officer on a committee will cause a perception of unfairness in the assessment of a candidate’s suitability for the Bench. On the other hand, the Minister, since 1988, has always had the ability to appoint a police officer as a member of the legal community who can provide insight as to how to assess an individual’s legal ability and merit. Would not the membership by one defence counsel on a particular JAC cause a similar problem of perception? Clearly, if one wanted to, one could create an enormous list of perceived disqualifications that would prevent anyone from being appointed to a Judicial Advisory Committee. It is therefore unclear why opposition members have singled out police officers as the one group that lacks the professionalism to operate with integrity in a JAC setting. It must be noted that this prejudice bubbled out numerous times over the course of the JAC hearings, and is most evident in paragraph 86 of the Report, which intimates that law enforcement representatives would use their newfound influence on JACs to appoint judges who would act as a vehicle to promote police misconduct.
3.5 Judicial appointments by the Governor General will continue to be based on merit and legal excellence, with input from a broad range of stakeholders.
3.6 Since their inception in 1988, the underlying objective of the JAC process has been the provision of a forum for a broad range of stakeholders. The changes to the new JACs implemented in November of last year broaden the base of stakeholders who will contribute to the discussion and assessment of competence and excellence required for judicial appointment.
3.7 A voice of the law enforcement community, a community no less implicated in the administration of justice than lawyers and judges, will broaden the basis of examination of potential candidates and contribute a fresh perspective of the competent and qualified individuals recommended for appointment to the bench.
4. The conclusion of this Dissenting Opinion is that the Report is fundamentally flawed and that its recommendations and suggestions should not be implemented.
4.1 The Report’s recommendations are not supported by an objective assessment of the constitutional, historical, or even current evidentiary basis of the existing JAC process. With the exception of Recommendation 4 which is a purely administrative matter, there are neither evidentiary facts, nor convincing intellectual reasons offered in the Report for any changes to a process now almost 20 years old which is working well, which elicits broad-based assessment of candidates’ skills and legal merit and continues to produce excellent new judges for Canadian courts.