How Impartial are our Judges?

Since Justin Trudeau became Prime Minister in 2015, he has appointed 466 judges to the federal courts. The lawyers he is carefully selecting for appointment to the Bench are not just any lawyers: many are lawyers who have made donations to the Liberal Party or been active supporters of or volunteers for the party. Trudeau apparently believes that appointments to the Bench are a way to keep money flowing to the party by way of ambitious lawyers.

The Globe and Mail (April 24, 2019 and February 18, 2020) and the National Post (December 11, 2020) reported that Liberal staffers and MPs are vetting judicial candidates’ political backgrounds before appointments are made. The Bloc Quebecois has been trying, unsuccessfully, to launch a parliamentary committee study on this questionable judicial appointment process.

This process is taking place despite the fact that, during the 2015 federal election, Trudeau promised to make judicial appointments more transparent and to have them based on merit. This obviously is not happening. Of course, lawyers who donate to a political party or who work or volunteer for a party can also be excellent judges. There are many such judges in Canada, whether appointed by Liberal or Conservative prime ministers, who are competent and carry out their responsibilities with the utmost integrity. We are grateful for their service to our country. On the other hand, there are too many judges who seize the opportunity, using their position on the Bench, to reshuffle Canadian values according to their own, personal ideology. It is they who bring distrust and disrespect to our courts. Further, the fact that the Liberals strongly favour individuals involved with the party also raises concerns that many qualified individuals are being overlooked by the current appointment system, where patronage plays a major role.

Trudeau is certainly not the only prime minister who has blatantly appointed judges on a partisan basis. For example, Liberal Justice Minister Irwin Cotler, under Prime Minister Chretien, went all out in making judicial appointments based on party affiliation. Between 2004 and 2006, Cotler appointed to the Bench his former Executive Assistant, his former Chief of Staff, the wife (Rosalie Abella) of his good friend, Irving Abella, who was a fellow member of the Canadian Jewish Congress, plus an assortment of Liberal fundraisers, campaign workers, defeated Liberal candidates, and other partisans.

Mr. Cotler did so without embarrassment or seemingly harming his reputation. He was just doing what Liberals do when they are in power.

This is not to say that Conservative prime ministers have not also made partisan judicial appointments. However, the practice of partisan appointments by Conservative prime ministers seems to be more the exception, rather than the general practice. One only has to look at the appointments made by former Conservative Prime Minister Stephen Harper to the federal, provincial superior and appeal courts, and to the Supreme Court of Canada to understand that he has made many appointments to the Bench of very liberal judges. Currently, the Supreme Court of Canada, which is very “progressive”, includes five Harper appointments.

Trudeau’s blatant manipulation of judicial appointments, however, is contributing to a growing mistrust of the judiciary in Canada. Many of the judges he has selected for appointment are not interpreting the law, which is their proper role, but, instead, are creating new laws, regardless of Parliament’s views. In doing so, the judges are, in effect, making public policy rulings which they are not qualified to do.

The legitimacy of the judicial system in Canada has always been its ability to remain aloof from political debate and to objectively interpret the law, not involve itself in public policy. Judges who meddle in policy decisions have diminished Canada as a democracy. In their enthusiasm to impose their will on the country, the rule of law means little to such judges.

As a result of the prevalence of judicial activism today, the public should be aware that the courts should be approached with caution. There is no longer a guarantee that justice will be served by our courts.