The judicial appointment system presently operates on a five-stage system. Four of the stages are strictly political in nature. The first stage, and arguably the most meaningless stage, is the review of potential candidates by “screening committees.” The screening committees are comprised of lawyers nominated by law societies, bar associations, a federally appointed Judge, a provincial representative, and, since 2006, a police representative.
The screening committees determine whether a potential candidate is suitable for appointment to the bench. Candidates are labeled as “recommended” or “not recommended.” Prior to the Conservatives taking power in 2006 there was a third possible recommendation, “highly recommended.” The “highly recommended” designation was removed because it was thought by the government that many of the persons that the government wanted to give patronage appointments to could not, or, did not meet the “highly recommended” standard. From the government’s perspective, the screening committees sometimes removed persons that the government wanted to provide with patronage appointments from the pool of possible candidates for appointment. The remaining four stages are very political.
The next group to play a part in the appointment process are designated cabinet ministers responsible for dispensing patronage appointments for the government. They generally gather names from their sources within their political party. They make recommendations to the Minister of Justice. There are no laws prohibiting contact between persons who wish to be appointed to a judicial position and the designated cabinet ministers who provide recommendations to the Minister of Justice.
Next, the Minister of Justice makes recommendations to the Prime Minister. After the Minister of Justice makes recommendations to the Prime Minister’s office, the Prime Minister’s “appointments advisor” screens the candidates for submissions to the Cabinet. The Cabinet, knowing that the recommended appointees have been approved by the Prime Minister, votes on the appointments. Canadians should be concerned that appointments to the highest trial courts and courts of appeal in our nation are so dependent upon blatant partisan political favouritism.
Prime Minister Trudeau has promised to make the entire appointment process more transparent under his supervision. To date nothing has changed.
The above is the an excerpt of Patrick J Ducharme’s book, Canadian Criminal Procedure, available at Amazon or in bulk through MedicaLegal Publishing along with Criminal Trial Strategies.
Subscribe to Patrick Ducharme’s Youtube Channel