Federally appointed courts grow restive as Ottawa slow to fill vacancies

Share

The chief justice of Alberta's top trial court says his province's courts are in desperate shape, as the Liberal government has yet to name a single judge to a federally appointed court anywhere in Canada since taking office.

"The word I use is desperation. We're desperate. I don't know how else to couch it," Chief Justice Neil Wittmann of the Court of Queen's Bench told The Globe and Mail.

Just more than a dozen jobs on federally appointed courts were open when the federal election was called last summer. There are now 38 vacancies across Canada. Of those, 10 are in Alberta – four on its appeal court, out of only 14 judges, and six on the Court of Queen's Bench.

It's not only Alberta judges who are growing restive. The Canadian Judicial Council, made up of chief and associate chief justices across the country, expressed its concerns to Justice Minister Jody Wilson-Raybould recently.

Ms. Wilson-Raybould would not commit to a starting date for appointments when she spoke to the judicial council, said an Alberta lawyer with knowledge of the meeting. "The government is considering the full scope of the appointments process, including the composition and operations of the Judicial Advisory Committees," a spokeswoman for the minister said in an e-mail to The Globe.

"Any potential changes will be examined in light of the government's objectives to achieve transparency, accountability and diversity in the appointments process and they will be carefully considering how best to achieve this goal, taking into account views of key stakeholders and interested Canadians in this regard."

The appointments process is not up and running yet. And Ms. Wilson-Raybould has made little progress toward putting a new process in place – having not even begun consultations with the legal community and leaving a critical position unfilled.

At the system's foundation are 17 judicial advisory committees – eight-member groups that screen candidates for federally appointed courts such as provincial appeal and superior courts, the Federal Court and the Tax Court. Several of these committees have no members at all – two of Ontario's three committees, both of Quebec's, plus all four committees in Atlantic Canada.

The Alberta committee, however, has all eight of its members, and met as recently as mid-March to recommend candidates for the bench, Chief Justice Wittmann said.

"Nobody is against reform if it betters the system," he said, "but you can't change locomotives and stop the train; the train's got to keep running while you're doing it."

Criminal and civil trials that need more than five days are being scheduled for "well into 2017," Chief Justice Wittmann said. "If the public through their elected representatives say that's fine, well, I guess it's fine. But there seems to be an expectation that it's not fine."

For the court's judges, "it increases their stress and their sense of helplessness, because they can't handle everything they're asked to do. The public thinks they're not getting the access they've come to expect. We cannot sacrifice quality to increase the quantity of cases that we process. It just can't work that way."

Ms. Wilson-Raybould has yet to discuss the system's pressing questions with the legal community: what to do about the changes to the process that the former Conservative government put in place, whether to commit to gender parity in judicial appointments, and whether to begin tracking the numbers of visible minority and aboriginal applicants.

She has not filled an essential job, known as judicial affairs adviser – which every government of all stripes has used to screen candidates for federally appointed courts. Without a judicial affairs adviser, it is doubtful any judges could be appointed.

Chief Justice Wittmann said the minister "indicated that she understands the problem. She talked about getting a judicial affairs adviser imminently. But she also talked about a greater degree of diversity."

He questioned whether the search for diversity will hold up appointments: "Everybody can support [diversity] on an ideal level, but if, for example, persons from some diverse area aren't going to law school and getting law degrees, are we supposed to wait until that happens and hold the vacancies open? That doesn't make sense to me, but I'm in my little position, I'm not in a big position."

Previous governments were not so slow off the mark. Former prime minister Stephen Harper took office in February, 2006, and the justice minister, Vic Toews, made his first appointments in June, or roughly the time that has now elapsed since the Liberals were elected last October. (Under Mr. Harper, vacancies hovered at times around 50, drawing the ire of judges and the legal community.) Jean Chrétien was first elected in November, 1993, and Allan Rock, the justice minister, made his first appointments in January, 1994.

Few legal observers believe Prime Minister Justin Trudeau will stick with the process on which the Harper government put its imprint. That government added a police representative to each committee. It then ensured that the federal government's four members on each committee would have a voting majority by removing the vote from the committee chair (a chief judge of the provincial court, or that judge's delegate). That drew a rare public rebuke from the country's chief justices, who said the system lacked an appearance of independence. And the Canadian Bar Association, representing lawyers, complained it had not been consulted on the changes.

The Harper government also removed a category known as "highly recommended." The advisory committees could only recommend, or not. Critics said the change made it easier for government to put political considerations ahead of merit.

But if the Liberal government intends to change the system, it has not yet consulted with the Canadian Bar Association, said its president, Janet Fuhrer.

Another key job, that of chief of staff to the minister, has not been filled. The initial chief of staff, Kirsten Mercer, did not last long in the job. It is being filled on an interim basis by Cyrus Reporter, a senior aide in the Prime Minister's Office, who is doing double duty.