Commentary, Opinion

Judicial independence should not be compromised for executive goals

When Prime Minister Stephen Harper left office in 2015, he left a legacy of politicizing the judiciary. Harper reformed the way judges are appointed to concentrate power in the federal government and pursue policy goals. Current Prime Minister Justin Trudeau has used similar tactics for his own agenda. A PM influencing the judiciary erodes the legitimacy of both the nomination process and of the judges who are appointed. If one values judicial independence and public confidence in the law, Canada’s judiciary should not be compromised by political agendas.

The PM has extreme discretion in the appointment of provincial superior court and federal court judges. Candidates are first screened by an advisory council, which then creates a ranked list from which the federal justice minister can choose a judge. These advisory councils are not constitutionally required, however, and their composition can be altered by the PM. In 2006, Harper passed reforms ensuring the federal appointees to the committees were a voting majority on the committees, comprised otherwise of provincial government and bar association representatives. Harper made his motives clear–to appoint judges friendly to his originalist constitutional views and his tough-on-crime agenda by changing the nomination process. Unfortunately, when Trudeau undid the Harper reforms, he did so to institute his own preferred policies.

In an essay in The Globe and Mail in August 2016, Trudeau outlined his vision for the Canadian judiciary. The Prime Minister placed a clear emphasis on increasing diversity on the bench, particularly by appointing more female jurists. Since then, the government has reformed the advisory councils so that the federal government no longer has a voting majority and has promised less interference in the neutrality of the councils. These are positive changes that should, in theory, ensure a judicial selection process that’s independent of Ottawa’s policy goals. However, the neutrality of the selection process is put into question when 66 per cent of the committee members are women and 59 per cent of subsequently appointed judges have been women, despite only 33 per cent of candidates being women. Even if it doesn’t have a voting majority, the federal government is still responsible for appointing a large percentage of screening committee members and for ultimately selecting the judges from the list of nominees–the disproportionate amount of women jurists can arguably be traced back to the policy goals articulated by Trudeau. Naturally, the Trudeau’s agenda has raised questions as to whether there are “quotas” in the appointment of female judges. These concerns unfairly taint the reputations of female judges as mere affirmative action appointees.     

The politicization of the judiciary is detrimental no matter how noble the policy goal. One should consider the precedent Trudeau is reinforcing for future PMs who may institute less popular policies through the judiciary. In its first 70 years the Supreme Court was held in disrepute since most appointments were political favours. The best way to preserve judicial independence is to create a meritocratic nomination system, devoid of politics, such that the judges appointed are seen as deserving of their position.

Indeed, to truly help women become jurists Trudeau need only to respect the process. Meritocratic nominating committees for provincial trial judges (non-federal appointees) have successfully appointed more women and minorities. According to a research paper from the University of Guelph by Derek Matisz, since nominating committees were instituted in Ontario in 1988 the percentage of female appointees jumped to from 30 to 52 per cent. Similar results were found in other provinces. There are undoubtedly highly qualified female lawyers that should become judges and a system based on merit will identify them–there doesn’t need to be a policy directive guiding the process.

Once the PM interferes in the nomination process to achieve a particular result, the judiciary becomes politicized, regardless of the goal of the interference. The judicial branch is supposed to be a check-and-balance on the government, not an instrument through which to advance federal political agendas.

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