Question Period Note: JUDICIAL APPOINTMENTS

The last round of judicial appointments before the election occurred on June 27, 2019. As of November 1, 2019, there are 54 judicial vacancies on courts across Canada. Is the Minister of Justice committed to making timely judicial appointments, based on merit, to address delays and respond to the judicial resource needs of the courts?

• The Minister of Justice plays an important role in promoting access to justice for all Canadians by ensuring that the process for appointing qualified judges to superior courts is effective and timely.
• Filling judicial vacancies in a timely manner is critical to ensuring that federal, provincial and territorial superior courts are able to operate effectively and efficiently.
• The Minister of Justice made over 300 judicial appointments to federal, provincial, and territorial superior courts across Canada since October 2015.
• The Minister is committed to ensuring the appointments process is up and running as soon as a possible, and will continue to appoint outstanding candidates who reflect the diversity of the communities they serve.

The current superior court judicial appointments process applies to applicants to all federally appointed courts other than the Supreme Court of Canada. The process was established in 1988 to provide advice to the Minister of Justice on the exercise of the important prerogative to make superior court judicial appointments. Administration of the process is the responsibility of the Office of the Commissioner for Federal Judicial Affairs. In October 2016, the Government announced several reforms, with the stated goal of increasing the openness, transparency, and accountability of the appointments process, and diversity in Canada’s judiciary. These reforms were well received, but some stakeholders have suggested further refinements to the system to increase transparency, fairness, and the speed with which appointments can be made

Applications from candidates for judicial appointment are reviewed by one of 17 seven-member judicial advisory committees based on public merit criteria. Judicial advisory committees also check references and undertake confidential consultations to assess applicants’ qualifications and suitability for the bench. Each application is designated as not recommended, recommended, or highly recommended; these results are provided to the Minister of Justice.

The Minister of Justice is responsible for making the ultimate recommendation to Cabinet to fill each vacancy. Before doing so, the Minister performs additional consultations, including with chief justices and provincial or territorial counterparts, to ensure that courts’ identified needs are met.

Judicial appointments are always of interest to the parliamentarians, the public, and legal stakeholders. There is often considerable pressure on the Minister of Justice to ensure that the process is running smoothly and that the number of judicial vacancies does not rise too high. This is a particular challenge during the caretaker period and immediately following a general election. As of November 1, 2019, there were 54 vacancies overall (out of a total of approximately 1,200 federally appointed judges). High vacancy rates have been linked to reports of delays in court proceedings. Making timely appointments, including ensuring that all judicial advisory committees are up and running, will prevent backlogs and resulting vacancies.

In February and April 2019, The Globe and Mail published three articles alleging that the Prime Minister’s Office undertakes additional vetting of candidates, with the implication that political considerations influence who is ultimately appointed.

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