Prime Minister Justin Trudeau’s political career (hopefully) may be drawing to a close, but he will leave a legacy behind him that will last for many years.
His legacy is that 76.3% of the 1,308 judges he has appointed since he was elected in 2015, have previously made political donations to the Liberal Party. The Globe and Mail revealed in 2019 that the Prime Minister’s Office (PMO) used a partisan database called “Liberalist”, as well as individual Liberal MP’s networks to vet candidates to be appointed to the judiciary.
Despite 2021 PMO claims that Liberalist was no longer used, the National Post August 28, 2023 confirmed that federal judicial appointments since 2021 still disproportionately benefitted Liberal donors compared with donors to other parties. Between 2016 and 2020, 78.4% of judges had donated to the Liberals. In contrast, between 2020 and 2023 the percentage of donations had only slightly decreased to 72%. Hardly a ringing endorsement of a neutral selection process.
This appointment system has enormous consequences. It not only undermines the public’s confidence in the judiciary, but also raises concerns about political influence in decisions made by Canada’s courts. Who sits on these courts is tremendously important, as they decide cases of broad interest of national importance.
For example, the Supreme Court of Canada in 2021 supported Trudeau’s imposition of a carbon tax. The Supreme Court supported Trudeau’s legislation and regulations restricting Alberta’s Energy industry. Canadian Courts have also consistently supported government restrictions relating to Covid-19, even though these restrictions violated fundamental Charter rights including freedoms of religion, assembly, and free speech as well as the legal requirement of a consent for medical procedures. This is not surprising. It is unlikely that Trudeau would appoint anyone who thinks differently from him on policy matters.
Unfortunately there is no Canadian law to prevent ambitious lawyers from donating to a political party in the hope that this may lead to an appointment to the judiciary. There should be a legal requirement that anyone being considered for judicial appointment must not have made donations to any political party. EVER. While it is true that Trudeau has appointed some NDP donors to the judiciary, given the ideological affinity between Liberals and NDP, there is no real difference. These NDP donors rose from 12.5% of appointees in 2016 to 28% in 2022.
Politicizing the Judiciary
Trudeau has politicized judicial appointments by appointing individuals, not on the basis of legal merit, but on political perspectives and financial backing which has resulted in no conservative appointments. Trudeau also created an evaluation panel, called the Judicial Advisory Committee (JAC), to provide a preliminary review of the candidates for him. Most of the panelists on the Advisory Committee have been involved in progressive politics and are cut from the same progressive cloth as Trudeau.
A further problem is that in 2016 Trudeau decided that all Supreme Court of Canada judges must be “functionally bilingual”, although he didn’t think that a “non-functionally bilingual” Governor General was a problem.
This has greatly reduced the pool of applicants available for appointment as there is not a large number of “functionally bilingual” lawyers in the Western provinces.
This is not to say that a judge who has previously donated to a political party cannot be fair-minded and objective. However, judges appointed by Trudeau are more likely to have a liberal/progressive approach or bias to issues. When the current vacancy on the Supreme Court of Canada is filled, Trudeau will have appointed seven of the nine judges sitting in the present court.
Changes to Judicial Appointments Required
One result of the politicization of judicial appointments is that it is apparent that Canadians can no longer have faith that their justice system is independent and impartial. A new system of judicial appointments is required to ensure that the administration of justice is not brought into disrepute. The new system must require that appointments to the judiciary be made by Parliament, providing the MP’s have a free-vote on the appointments and are not required to vote along party lines. Prior to any vote by Parliament, a Parliamentary Committee, consisting of MP’s from all parties, must review the candidate’s background so that there is complete transparency in the appointments. Finally, anyone who has ever been a member of a political party, contributed to a federal and/or provincial political party/candidate or otherwise been a “Party bagman” is ineligible for judicial appointment. Candidates for judicial appointment must come from the real practice of law, not academia or law reform commissions. Until such time as these critical changes are made, our judicial system is undermined, suspect and untrustworthy.