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 | Judicial appointment process too politicized, critics say | | published on : 11-17-2014 | | Category : Appointments | | The federal government’s delay filling several vacancies for full-time judges on the Federal Court of Appeal highlights inherent flaws in an overtly politicized appointment process, say lawyers who argue cases before the appellate body.
This week Toronto lawyer Rocco Galati sent a letter to Prime Minister Stephen Harper and the Attorney General of Canada threatening to launch a constitutional challenge if five vacancies on the appeal court aren’t filled in 45 days.
The law calls for a chief justice and 12 full-time judges to sit on the court, Galati notes. Currently, there’s Chief Justice Marc Noel, seven full-time judges, and three supernumeraries, who don’t count as full-timers.
Galati, known for helping earlier this year to block Justice Marc Nadon’s appointment to the Supreme Court, says the Federal Court of Appeal vacancies are leading to delays of up to nine months for cases to be heard.
The vacancies breach the underlying constitutional right to a fair and independent judiciary, Galati argues.
Several prominent lawyers who’ve appeared before the appellate court say the delays are due to political considerations; they argue that because Federal and Supreme Court appointments are made by the prime minister and cabinet, the selections often centre around loyalty and social values that fall in line with the Conservative party.
Lorne Waldman a Toronto lawyer specializing in immigration and refugee law, sees a “huge problem” with the appointment process in general.
“Canada as a democracy has a completely, in my view, unacceptable process for appointing judges, which is far too political,” he says, adding he has not seen as many vacancies on the Federal Court of Appeal as now exists.
“There have been vacancies before, but not this many for so long,’’ says Waldman. He notes, however, that he’s not sure about Galati’s contention that a constitutional issue arises as a result of the unfilled positions.
When queried about the vacancies this week, Clarissa Lamb, press secretary in the office of Peter MacKay, Minister of Justice and Attorney General of Canada, said in a statement to the Star: “these appointments have always been a matter for the executive and will continue to be.
“The appointment process includes broad consultations with prominent members of the legal community. We will respect the confidentiality of the consultation process and will not comment on specific recommendations.’’
When later asked about the accusations that the delay in filling the vacancies is a result of political considerations, Lamb said the government’s reply “stands as is.’’
One of the lesser-known courts, the Federal Court of Appeal, deals with the most serious jurisdictional, legal, and interpretational cases emanating from the Federal Court, issues as varied as immigration, aboriginal and maritime law.
The appellate court also hears appeals from judgments of the Tax Court of Canada, and has authority over judicial reviews and appeals from federal tribunals, and bodies such as the National Energy Board and the Canadian Radio-television and Telecommunications Commission (CRTC).
Like the Federal Court, it’s a travelling court where cases are heard in cities across the country.
In a report released in 2011 that examined several Canadian institutions, the non-profit group Global Integrity gave Canada a failing grade for the way it appoints judges. The organization, which monitors accountability and openness around the world, concluded that Canada does a poor job when it comes to transparency around judicial appointments.
“In law there is no established public process for federal judicial appointments (nor are there, in law, public processes for the appointment of the heads or members of the many quasi-judicial, administrative tribunals, agencies, boards and commissions that enforce various specialized federal Canadian laws),’’ the report says.
Raoul Boulakia, a Toronto refugee lawyer, prefers the selection process in Ontario where names of potential provincial court judges are vetted by a committee, and only the names the committee approves go forward to the premier and provincial attorney general.
“It’s not a situation where the government says here’s 10 people, rank them,’’ Boulakia says, referring to the federal appointment process.
For Boulakia, the Federal Court of Appeal vacancies harken back to 2006, when Prime Minister Stephen Harper was elected and there were 34 vacancies on the Immigration and Refugee Board, to which the federal government appoints individuals.
Most IRB members appointed under the previous Liberal regime weren’t renewed as their terms expired.
At the time the 34 vacancies prompted concerns from IRB members themselves that delays in hearing immigration cases were occurring as a result.
Lawyer Mario Bellissimo, an immigration and citizenship specialist, suggests that perhaps the rigours of sitting on a travelling court may provide a few challenges when it comes to finding candidates for the appellate court.
“That’s a tremendous consideration for the average lawyer, especially if you have a young family,’’ he said.
But several lawyers suggested the Conservatives may simply be a bit twitchy after getting burned on the Marc Nadon appointment fiasco.
“I think it’s a political calculation about timing, and do they want it to be an election issue,” says Boulakia, referring to the appeal court vacancies
Galati launched a court challenge last year that helped block the federal government’s appointment of Justice Marc Nadon to fill a vacant Quebec seat on the Supreme Court of Canada.
The high court ruled this year that Harper-appointed Nadon isn’t eligible to sit on the Supreme Court because he serves on the Federal Court of Appeal – and was not a Quebec bar association member at the time of his appointment.
The Supreme Court ruled the three high court seats set aside by law for Quebec are restricted to Quebec superior court trial or appellate level judges, or current members of the Quebec bar — not members of the Ottawa-based Federal Court, or Federal Court of Appeal. | | Related Keywords : | | higher education education our education |
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