Take politics out of judicial appointments

With everything else going on these days, few Canadians probably noticed when the country’s most prominent legal advocacy group condemned the Trudeau government for the way it appoints judges.

That’s a pity, because the problem identified in an open letter from the Canadian Bar Association earlier this month is a big one. It threatens to undermine not only the faith Canadians have in their country’s justice system, but the integrity of the system itself.

The specific practice the bar association zeroed in on was the federal government’s “political vetting of candidates,” which at the very least raises fears that Liberal politicians are quietly rewarding Liberal friends — and in a way that could influence the justice system. It works like this. As part of its extensive vetting process for would-be judges, the federal government uses the Liberal Party of Canada’s private database, which is called the Liberalist.

This list tells the government how much, if anything, a judicial candidate has contributed to the Liberal party and also states whether and when someone was a Liberal party member. If they participated in electoral campaigns or leadership races, that information is conveyed to the government, too.

The bottom line is the Liberalist lets the government know exactly how Liberal-friendly a candidate is. And therein lies the failing the Canadian Bar Association is railing against. There’s nothing untoward, for instance, about a lawyer contributing financially to one or more political parties. But such generosity should never be a factor in deciding whether that lawyer becomes a judge.

Public trust in Canada’s justice system largely relies upon having judges who are informed, fair — and apolitical. But thanks to the use of the Liberalist, the federal government’s current process for appointing judges is “open to speculation about political interference,” the bar association said in its letter, adding: “It is time to make the system less open to manipulation.”

A lot of people agree. Last week, the citizen’s group Democracy Watch filed a challenge of the appointment process in the Federal Court, alleging it is undermining the independence of the judicial system. Before that, former Liberal justice minister Jody Wilson-Raybould confirmed in a recent interview that there was political pressure in the selection of new judges. And last year, François Landry, a Liberal official in the office of Justice Minister David Lametti, claimed the Prime Minister’s Office was playing an unreasonable role in judicial appointments.

It shouldn’t be too hard for Canadians to agree there’s a problem that needs fixing, one that could politicize judicial appointments for social engineering purposes. After all, many Canadians were as outraged as their American neighbours when U.S. President Donald Trump succeeded in having staunch social conservative Amy Coney Barrett appointed as the nation’s new Supreme Court justice. Trump’s actions were widely criticized, not only because they came just before the election he ended up losing, but because he was consolidating a conservative majority on America’s highest court that will likely last and influence the country for a generation.

Of course, American judicial appointments have long been politicized in a way that remains foreign to Canada. Moreover, when it comes to political pressure in Canadian appointments, a remedy may be on the way. In the next few weeks, the House of Commons justice committee is expected to launch a study of the judicial appointment process. We wish it success. There are many vital qualifications every aspiring Canadian judge should possess. Being an identifiably staunch supporter of the Liberal Party of Canada should not be on that list.