Editorial Cartoon by Graeme MacKay, The Hamilton Spectator
Judicial integrity in Canada is still a thing. South of the border, it’s appears to be just a myth, or a sad memory. I want to do a review of the US situation, with an update covering some of the US courts’ more recent and inexplicable decisions. And then I will look at bit at the situation here in Canada with a view to checking for guardrails that keep our judiciary from sinking to the level of the US courts.
Almost exactly a year ago, I wrote a piece on the sad state of the US courts. I concluded that the US courts – not just the Supreme Court, but the whole system – has been captured by partisan interests. Judges are routinely labelled as “conservative” or “liberal”, and are making less and less effort to seem impartial in their rulings.
Last July I noted that decisions in the US are increasingly flawed. One article on the Supreme Court machinations identified that in 55% of cases they’d reviewed, “the conservative majority disregarded one or more of the following judicial principles: (1) precedent or stare decisis; (2) judicial restraint; (3) originalism; (4) textualism; or (5) aversion to appellate fact finding.” What that means is that they are throwing away the rule book that governs good judicial conduct.
I also noted that the current ultra-conservative nature of courts in general, and the Supreme Court in particular was a product of investment by billionaires into the right-wing Federalist Society and its major power broker, Leonard Leo. An article on the PBS web page reminds us that the Leonard Leo was ably assisted by Senator Lorne McConnell, who resisted judicial appointments during the Obama presidency, and then pushed through appointees for Trump. In addition to the three Supreme Court justices appointed during his tenure in the White House, Trump was also able to appoint 228 “mostly young, white and male” judges across the federal district and appeals court systems.
In an article on the American Constitution Society webpage, authors Joanna Shepherd and Michael Kang identify that state court judges are appointed through a patchwork quilt of methods including merit appointments, gubernatorial appointments, partisan elections and non-partisan elections. Fewer than 50% of the appointments are merit-based, and even when they are, they are often subject to later re-appointment elections. “As a result, almost all state supreme court justices must please some combination of voters and politicians who will determine whether they keep their judicial seats.” I find it amazing that the Americans have any faith in the impartiality of a justice system in which the expectation is that judges have strong partisan leanings.
And that brings us to the update portion of this exercise, which is where we focus on the processes and decisions surrounding the many trials of Donald John Trump. Let’s talk about process first. One case against Trump has proceeded to a verdict. The hush money trial found Trump guilty and labelled him a felon. I don’t have a problem with that outcome, because I think the man is a felon. However, it was notable from the start that the prosecuting attorney really stretched the envelope in elevating a state-level misdemeanour offense into a felony. It was also notable that the judge in the case, a Democrat appointee, was very good at keeping that trial on track and preventing delays. And why was that important? Because the Democrats wanted to bring Trump to trial and label him a felon before the fall election. Partisanship does in fact cut both ways. But yes, the Republicans are winning most of the partisan judiciary battles.
Quoting loosely from the Economist – “The ruling from the court (on Presidential immunity), whose 6-3 conservative majority includes three justices appointed by Trump, will be released 20 weeks after he sought relief from the justices…. In March, the court threw out a judicial decision that had disqualified Trump from the presidential primary ballot in Colorado.
The speed with which the court dispatched the Colorado case – quickly agreeing to decide it and ruling in Trump’s favor within a month of hearing arguments – contrasted with a sluggish pace in resolving Trump’s immunity bid that has been to his benefit.” So, the court delayed the immunity hearing as long as possible, which was probably not surprising. What was surprising, (astonishing, freaking crazy) was that they ruled in favour of Trump, granting him immunity for most of the actions he took while in office.
Heather Cox Richardson, in her “Letters from an American” series of essays, noted today (July 30th) that “With those (Trump appointed) justices on the court, it has handed down a series of nakedly partisan decisions that represent the goals of the extremist Republican Party rather than the majority of Americans. They have overturned a ban on bump stocks for semiautomatic rifles, made partisan and racial gerrymandering easier, undercut business regulation, ceased to recognize the constitutional right to abortion, and, stunningly, ruled that a president has significant immunity from prosecution for committing crimes while in office.”
The Trump-appointed judge in the Top-Secret documents case against Trump has been dragging that case out since she took it on in 2023. Shortly after the immunity ruling from the Supreme Court, she threw out the documents case. She didn’t rely on the immunity ruling, but she did rely on an opinion written by Supreme Court Justice Clarence Thomas in the election subversion case in which he suggested that prosecutor Jack Smith had been appointed illegally. However, per the Economist, “Justice Thomas’s musings are his alone and do not carry the force of law; none of his eight colleagues co-signed his opinion…. The ruling is novel, it manhandles precedent and its implications are sweeping.”
The appointment of special counsel, special prosecutors like Jack Smith is nothing new in the American judicial system. They are commonly appointed “when the impartiality of an investigation by the Department of Justice itself might be questioned.” So, in this situation, we have Trump bitching and whining about the Democrats “weaponizing the Justice system” against him, and then we have him objecting in court when the Attorney General appoints a prosecutor from outside the Justice system. And to top that off, we have his pet judge using that as an excuse not to bring him to trial.
Partisan is one description of American judges. There is another term that can be applied to the US judiciary, and that term is corrupt. Heather Cox Richardson says “several justices, especially Justice Clarence Thomas and Justice Samuel Alito, have accepted large gifts from those with business before the court and have refused to recuse themselves from those cases.”
The sad thing is that these people, this corrupt band of political grafters, is quite possibly the most powerful collective in the United States. The Legislative branch, the Senate and the House of Congress are passing no legislation and making no law. The President’s hands are tied by the inability to persuade Congress to go along with his wishes. The President, the Senators and the Congressmen are all subject to dismissal in an election. But the Supreme Court justices are appointed for life and can do whatever the Hell they want. They are making new law every day, and are basically riding roughshod over precedent and common law which used to guide decisions.
So, it’s a shit show in the USA. But you knew that, didn’t you? So, the question for us is, could it happen here? What protects us from that kind of partisanship and corruption in Canadian courts?
I asked that question recently to a couple of different golfing partners. One guy was a retired Federal judge, and the other guy was a lawyer. Both of them said much the same thing – I don’t think we have to worry about that because that’s not the normal process and culture for the way we pick judges.
That sounds comforting, doesn’t it? The only problem is, culture is not the same as process. An article published by the University of Alberta’s Center for Constitutional Studies says this: “While the Governor General makes the appointment, there is a convention whereby the Prime Minister recommends the justice who will be appointed…There is nothing written in the Constitution with respect to the Prime Minister recommending the appointment to the Governor General. However, in practice, the Prime Minister makes the final decision on who gets appointed to the SCC…In addition, there is nothing in the Constitution requiring the Prime Minister to discuss appointments with cabinet, parliament or the provinces.”
Now my legal advisors were right in that there are process elements intended to help the Prime Minister make the right choices. For Supreme Court of Canada (SCC) appointments there is a parliamentary committee which will review appointments and make recommendations to the PM, and there is also an opportunity for the parliamentary committee to question nominees before appointment. But the article goes on to add that “the ultimate decision still rests with the Prime Minister and the committee cannot veto a nominee.” So, guardrails for Federal judge appointments? There really are none.
There are both Federal and Provincial court judges. “The federal government appoints and pays for both the judges of the federal courts and the judges of the superior appellate and trial level courts of each province. The provincial governments are responsible for appointing judges of the lower provincial courts.” (Wikipedia). Each province has their own process, but there are similarities.
In Ontario, there is a Judicial Appointments Advisory Committee (JAAC). The JAAC reviews applications for an open seat on the bench, conducts interviews with those who make the short list, and submits a ranked list of recommendations from which the Attorney General will select the appointee. There are 13 members on the JAAC in Ontario.
Like Ontario, Quebec has a committee, but they’ve limited the membership to just five. British Columbia has a similar committee, with nine members. In all three of those provinces, the advisory committee acts as a screening body, evaluating the judiciary candidates against a defined set of criteria. All of which sounds pretty solid compared to the muck-raking innuendo and self-promotion exhibited by Senators in the American process. But then you need to peel back another layer of the onion.
In none of those three provinces, is the decision made by the committee. In Ontario, the decision is made by the Attorney General. In Quebec, the Minister of Justice selects from the recommended list and proposes an appointment to Cabinet, so it’s a Cabinet decision. In BC, as with Quebec, it’s a decision of the Attorney General, rubber stamped by the Cabinet.
“But”, you say, “if the cabinet didn’t choose from the recommendations of the committee, there’s be Hell to pay, so the committee does have significant power.” And yes, that’s probably true. But who are on the committee and how are they chosen? In Ontario, “In addition to seven (7) lay members who are appointed by the Attorney General, two (2) judges are appointed by the Chief Justice of the Ontario Court of Justice, one (1) member is appointed by the Ontario Judicial Council and three (3) from the legal community are appointed by the Attorney General from lists of three names submitted by the Law Society of Ontario, Ontario Bar Association and the Federation of Ontario Law Associations, respectively.” If you read that carefully, you’ll realize that ten of the thirteen committee members are selected by the Attorney General. And have you noticed that although the three lawyers’ associations listed above have representation on the JAAC, the AG gets to choose who their representatives will be? “We really value your opinion as long as it reflects ours”.
That’s not awful, if the process is all about choosing the best neutral and objective judges. But what if it isn’t? In Ontario, the reason that there are 13 committee members is because the Ford government introduced legislation to increase the number of members appointed by the AG, thus giving the governing party more power over the selection process and reducing the influence of the judiciary and the law society. Further, where the JAAC used to provide the AG with two names from whom to choose they must now provide six names and if the AG rejects them, they must select a second six-pack of possible judges. In February of this year, Doug Ford suggested that he was going to appoint “like-minded judges” saying that “I’m not going to appoint some NDP or some Liberal.” The first thing that tells you is that although the appointment is notionally the Attorney General’s accountability, the Premier is the AG’s boss, and he will have the ultimate power of decision. The second thing it tells you is that here’s a premier who believes that this is a political appointment, not a judicial appointment. At least one group is considering launching a constitutional challenge of Ford’s appointments based on the requirement in the Charter of Rights and Freedoms for an “independent and impartial tribunal”. I think that’s a good challenge. Impartial tribunals are not made up of partisan political appointees.
In an article posted on The Hub, Mark Harding, an assistant professor in the department of political science at the University of Guelph argues that there’s nothing wrong with Premier Ford’s approach to appointing judges. His article says “It should be stressed that politics and partisanship are not the same thing. The courts are political in the sense that, like other political institutions, they make decisions that reflect the community’s values and differing views of justice….Downey’s comments and Premier Ford’s desire for individuals to vet judicial appointees for shared perspectives are different from partisanship….the federal Liberals have been in hot water over evidence of patronage and cronyism…It is sufficient to say that choosing sympathetic judges is a bipartisan practice at this point.” With all due deference to Dr. Harding’s scholarship, I think he has this all wrong.
The elected governments in our country “reflect community values” for the term for which they are elected. If they fail to accurately reflect community values, they are turfed out in the next election, and a new government is installed. That doesn’t happen to judicial appointees. Judges are appointed to serve until age 75 – they don’t go when the government goes. If it’s OK to choose judges because they reflect a certain political perspective, what happens when that perspective is not that of the people? South of the border we are looking at a country which has a Supreme Court which totally fails to reflect the values of the elected government of the day. It’s not a pretty sight, is it?
You want partisanship in the selection of judges? Then fire them all every time the government changes.
I would dispute the opinion that selecting people who share your perspectives is different from partisanship. The intent is to ensure that the courts will see things your way any time you’re skating on thin legal ice. You’re trying to appoint people who will take your side when you need them. That’s partisanship.
Finally, the point about the Liberals having been in trouble over allegations of cronyism leading to the final comment that “choosing sympathetic judges is a bipartisan practice” is the equivalent of saying “Well he started it”. It’s irrelevant how it got started. Trying to create a liberal or a conservative court is wrong. We should be seeking judges who have good analytical skills, who are able to parse a legal document and understand fine shades of meaning in it. Governments should be trying to achieve their legitimate aims by passing laws and issuing regulations. That’s their job. Courts should be assessing, analytically and impartially, the legality of actions taken by the government or others in the context of the laws and regulations as written. That’s their job.
I don’t think we’re in terribly bad shape here with regard to judicial appointments. My golfing buddies are largely correct – the culture is still pretty non-partisan and professional. But we’re quite vulnerable in Canada to creeping erosion of our values. We’re seeing incredible partisanship in the states. We’re seeing increasingly un-statesmanlike behaviour from elected officials in the states. We’re seeing corruption in the judicial system. And the more we see those things, the more we tend to normalize and accept them. And we must NOT accept them. I want Lady Justice to be blind, holding those little scales. And I don’t want Doug Ford’s hand or Justin Trudeau’s hand, or anyone else’s hand on those scales. The procedure for appointing judges is very important, and we must vigorously oppose those changes that seek to make the judiciary a partisan tool of the government of the day.
3 responses to “Judicial Integrity in Canada”
a good read.
Rosemary
Thanks Rosemary
I got this comment from a reader by private email.
“ I read your blog on Judicial Appointments and enjoyed it. For the most part I agree with your thoughts although the cynic in me says that everyone has political leanings that can easily be hidden from review panels and the likes of the Koch brothers can patiently get there people in no matter the oversight.”
My response is that our protection doesn’t come from the genius of the oversight panel. It comes from the make up and the objectives of the oversight panel. I would trust lawyers and judges to understand what works well within the justice system more than I would trust politicians. When I started that article, my focus was to understand the process. I wanted to know whether the process as laid out in legislation, protect us from the kind of idiocy that’s happening in the states. And quite honestly, I don’t think the process is all that good. It is clearly being perverted here in Ontario by the Ford government.