THE POLITICS OF THE BENCH
DESPITE TRUDEAU'S VOWS, LIBERAL DONORS STILL MORE COMMONLY PICKED FOR JUDICIAL APPOINTMENTS
Far more Liberal donors have been appointed or promoted as judges than donors for other parties since Justin Trudeau was elected, a new tally shows, despite the prime minister's promise to use a merit-based system.
In total, about 28 per cent of federal judicial appointments or promotions under Trudeau have been people who solely donated to the Liberals in the past, compared to four per cent who were solely Conservative donors and one per cent who were solely NDP donors. A further seven per cent had donated to the Liberals and at least one other party.
In an effort to show the Liberals haven't taken the politics out of judicial appointments, the Conservatives tracked the donation histories of 466 appointees, lining up names and postal codes with public election data.
The National Post independently checked the data.
Many of the donations are small, sometimes just a few hundred dollars or less. But the governing party showing up as the clear favourite comes as no surprise to Troy Riddell, a University of Guelph professor who has studied the history of partisanship and judicial appointments going back decades in Canada and other countries.
“Lawyers who donate to political parties can of course be terrific judges,” Riddell said by email after viewing the numbers. “However, the fact that governments (both Liberal and Conservative) favour individuals who donated to their party does raise some potential problems. How many better-qualified individuals may be overlooked by a system in which patronage clearly plays some role?”
David Taylor, spokesperson for Justice Minister David Lametti, said the minister has no knowledge of a candidate's donation history before he recommends them to cabinet for appointment.
Another government source pointed out the process is based on applications, and said it's possible some self-selection is at work; when a Liberal government is in power, like-minded people may be more inclined to put their names forward.
Still, the latest numbers show the Liberal donor proportion has slightly increased from nearly two years ago when a Globe and Mail analysis found 25 per cent of the 289 judges appointed or promoted had been Liberal donors.
The Globe also reported the Prime Minister's Office was checking judicial appointments against its private party database, called Liberalist, which reveals donation history and other party involvement.
The Conservatives have their own controversial past in making judicial appointments and tilting the system in their favour. Most notoriously, Vic Toews was appointed to the Manitoba Court of Queen's Bench in 2014, less than a year after he'd quit as a Conservative cabinet minister.
In response, the Liberals ran on a promise in 2015 to move to a more merit-based process for judicial appointments. Legal experts have largely commended the Liberals for boosting the independence of the regional judicial advisory councils that receive applications and create lists of candidates ranked as “recommended,” “highly recommended” or “unable to recommend.” The justice minister then makes a recommendation from the list to the federal cabinet.
But the system still lacks transparency, as it's unknown how many candidates are appointed from outside the “highly recommended” group. Over the past year there's also been a steady drumbeat of stories reporting that Liberal staffers and MPS are involved in vetting candidates' political backgrounds. The Bloc Québécois has been trying, so far unsuccessfully, to launch a parliamentary committee study of the issue.
Conservative MP Michael Barrett, the party's ethics critic, said the numbers show a broken promise.
“They made a promise that they would have a system that was strictly merit-based judicial appointments,” Barrett said. “We know that instead, the names get put through the Liberal donor database. The donation amount by prospective appointees doesn't speak to their merit as a judge. So the question would have to be asked: What's the purpose of them aggregating that information?”
Taylor said people misunderstand the vetting. He said Lametti reviews the advisory committee's findings and considers factors such as the court's needs and a candidate's expertise in order to make a recommendation. After that, background checks are done to ensure there are no major controversies.
“The minister has no knowledge of a candidate's donation history when he makes a recommendation to appoint,” Taylor said. “Those due-diligence details, which also include the candidate's presence on social and mainstream media, are not researched until after he has made a decision and are only researched for issues management purposes.”
Taylor said the appointments process “neither disqualifies nor privileges an applicant because of his or her legal donation to a political party.”
Riddell has his own list of questions raised when patronage appears to be affecting judicial appointments. Do good candidates choose not to apply because they doubt their chances? Does it hurt efforts to make the judiciary more diverse? Does it hurt the public's perception of the legal system?
“The data show that certainly not all appointees have an affiliation with the party in power,” Riddell said. “However, it is telling that for the (not insignificant) portion of appointees who have an affiliation with a party, it is highly skewed towards the party in power. This raises all the questions noted above.”
Brad Regehr, president of the Canadian Bar Association, said political donations in themselves are not a problem for judicial appointees.
“I've seen a lot of lawyers involved in political parties from all parts of the political spectrum,” Regehr said. “It's an important part of Canadian democracy, it shows that a person is willing to give of themselves to something other than just themselves. I think it's a good indicator of someone who is committed to public service.”
Regehr said he believes the judicial advisory committees do strong work in assessing candidates, but also that the government could be more transparent in showing it respects that work.
“It becomes concerning to us when there is the appearance that political affiliation is the major determining role,” Regher said, but added that he has not seen evidence to conclude that's the case with this government.
“Every government has its priorities and certainly has its political leanings, so we're always going to end up having to deal with that,” Regher said. “But if there is a commitment from successive governments that they will appoint on the basis of merit, and that the judiciary becomes reflective of the Canadian population, that would be a big step.”