'Political vetting' of appointments threatens public faith in judiciary, says bar association

One of the country's most prominent legal advocacy groups is criticizing the Trudeau government's judicial appointment process, saying the "political vetting of candidates" could undermine Canadians' trust in the judiciary.

In an open letter dated Nov. 6, the Canadian Bar Association said the federal process is "open to speculation about political interference" — echoing opposition critics' accusations about the government's extensive background checks on candidates for judicial office.

"It is time to make the system less open to manipulation," says the letter, signed by CBA president Brad Regehr.

As previously reported by CBC/Radio Canada, the federal government uses the Liberal Party of Canada's private database — called Liberalist — in the vetting process for would-be judges, allowing the government to learn the full extent of a candidate's financial contributions to the party. The database states whether and when someone was a member of the Liberal Party and whether they participated in electoral campaigns or leadership races.

The CBA said there is nothing wrong with lawyers making financial contributions to various political parties, but those donations should not be factored into the selection of new judges.

"By continuing a process that is open to speculation about political interference, the government risks eroding the confidence of the public in the independence and fairness of the justice system itself — particularly in marginalized communities that already feel the system doesn't work for them," the letter said.

In the House last week, Justice Minister David Lametti said that judicial appointments are based on merit and the goal of increasing diversity in Canadian courtrooms. He said the reforms introduced by the Liberal government in 2016 were aimed at depoliticizing the process — in large part by relying on candidate assessments made by Judicial Advisory Committees.

"We changed and improved the judicial appointment process precisely because the former Conservative government was making very partisan appointments," he said. "Yes, we do hold consultations, but they are broad-based, thorough consultations with the entire legal community. I am very proud of the quality and diversity of the appointments I have made."

'A potential for scandal'

Last year, a Liberal official in Lametti's office complained to his superiors, claiming the Prime Minister's Office was playing an overbearing role in the judicial appointment process. According to emails obtained by Radio-Canada, François Landry warned that partisan considerations have created the "potential for a scandal" in the federal nomination process.

In an interview with Radio-Canada last month, former justice minister Jody Wilson-Raybould confirmed the existence of political pressure in the selection of new judges. She said she is proud of the more than 200 judicial appointments she oversaw but acknowledged she felt a need to "insulate that process" from partisan considerations.

"During my time as minister, there were people in the centre, the Prime Minister's Office, other ministers, Liberal partisans, who would take great interest in the appointments process," she said.

"There is a sense that some people still carry that appointments, whether they be to the bench or otherwise, that you can curry favour if you are a partisan or if you have done something to benefit the party."

In its open letter, the CBA added that the vetting process conducted by various federal officials has hindered the government's ability to quickly fill vacancies in courts across the country.

"It can be argued that the political vetting of judicial applicants — which happens after the Judicial Advisory Committees have made their recommendations [of which lawyers are qualified for a nomination] — has been a factor in the number of vacancies on the bench, which is a direct contributor to court delays and the access to justice crisis in Canada," said the CBA's letter.