Appoint Me! The Chief, The Globe and Our Appointment Process

In her speech in August 2004 to the Canadian Bar Association in Winnipeg, Chief Justice McLachlin stated that the appointment process is of particular importance to judicial independence. In this speech she thanks the Bar for their efforts in safeguarding the process, an action that she characterizes as part of the legal profession’s responsibility to vigilantly defend judicial independence.

So why am I bringing this up? Well it seems relevant today, in light of the recent articles that have been appearing in the Globe and Mail newspaper. There is John Ibbitson’s column Judges must fight for their independence, the editorial Politicized Panels damage the Bench, and Campbell Clark’s article Tories pushing courts to the right, critics say. All of which appeared in Tuesday February 13, 2007 edition of the Globe and Mail and all of which discussed the independence of the judiciary as it relates to their appointment process and the recent move by the Conservatives to appoint partisans to the selection committees

Campbell’s article declares that Prime Minister Harper and the Tories are stacking the committees that select judges with partisans. A total of 16 out of 33 appointments according to the article have gone to partisans.

Ibbitson’s column acknowledges Harper’s right to appoint judges that share a conservative judicial philosophy but raises concerns about the competence of candidates being sacrificed for the sake of party affiliation. The appointment of partisans and the recent change from three to two categories of assessment, by collapsing the highly qualified category into qualified, provide the basis for this concern. He then suggests that if judicial independence is to be protected it may fall to our C.J. McLachlin and the Canadian Judicial Council which she chairs to take action on the issue. For Ibbitson the mere launching of an investigation by the CJC would be controversial enough that the Conservatives would have to retreat or take on the courts in an open fight.

The editorial raises the same concern as Ibbitson about the new members of the judicial selection committees choosing candidates on the basis of some criteria other than merit and skill. Also mentioned is the fact that C.J. McLachlin and the CJC have already rebuked the government for their appointment of an additional police representative to these committees.

With other democratic countries such as the U.S., Germany, and Italy acknowledging the political nature of the appointment process to their top courts one wonders about the importance of clinging to a supposed objective selection process. If these other leading nations in the democratic tradition have acknowledged this political nature then there is an argument that the Canadian selection process is actually out of step with democratic norms around transparency. In what other public institutions does this notion of objectivity still exist? A look at the journalism profession and we see that the veneer of objectivity has not faired well in the face of movements such as the New Journalists and business consolidation of the print news industry.

In an age where the public is increasingly cynical about their public institutions clinging to this institutional camouflage may actually be hurting the public confidence in the judiciary. It remains to be seen what response will be taken by C.J. McLachlin and the CJC regarding these latest developments but if C.J. McLachlin’s speech is any indication, it is unlikely that the judiciary will sit passively back.