Judge selection process can be better

Hey there, time traveller!
This article was published 3/3/2011 (3282 days ago), so information in it may no longer be current.

Canada has a reputation for producing very good judges. Wherever I have travelled and worked I have heard praise for the capacity, integrity and independence of Canadian judges.

It feels very strange to be writing that in a week when so many people are feeling so unhappy with a particular decision and with the judge that made it.

Let's face it, even good judges sometimes make mistakes, or lose their patience, or say the occasional dumb thing. They are, after all, human beings and to my mind the more humanity the better. Mistakes can be fixed. That is what the Court of Appeal and Supreme Court do for a living. But I am not writing this to tell you about what I think about our judges. I am writing it to tell you how we can do better.

The appointment process for federally appointed judges (that's the Court of Queens Bench and Court of Appeal in Manitoba) is not well-known and even for those with a fair bit of experience with the process (me, for example) there is some mystery to it.

I know any lawyer with more than 10 years of practice experience can apply. The form of application is a public document and is very thorough. I know all applicants are screened for their law society discipline history and for any negligence claims against them.

I know all the applications go to a screening committee of eight people. I know who's on that committee (a judge, a law society nominee, a nominee of the law enforcement community, a nominee of the provincial attorney general, a bar association nominee and three others appointed by the federal minister of justice).

I know this committee screens applicants and the screening is robust, including lots of very focused reference checks. I also know that before an applicant is appointed, there is another screening by CSIS, the RCMP, CRA and the superintendent of bankruptcy. So where's the mystery?

The mystery is in what happens once the screening committee works its magic. You see they don't pick a winner. They have only two options: a candidate is either recommended or not recommended. The federal minister must appoint only from the pot of people who are recommended by the committee, but how does he make his choice? That is where there is room for considerable improvement.

First, we should change the way people apply. Right now, you don't apply for a specific vacancy. You just put your application in the pot and if you are recommended, it remains there for two years. Why not advertise for specific vacancies as they arise? This would enable the advisory committee to find someone who best meets the needs of the court at that particular time. Do we need more experienced criminal lawyers? Do we need more diversity? Do we need to expand our French-language capacity?

More importantly, it would enable the committee to become a selection committee instead of an advisory committee. Instead of dozens of recommended names floating in a big stew pot in Ottawa, where a winner by some mysterious process is scooped out by the minister, why not have the committee select the best candidate from among the applicants?

And another thing — the committee should interview the candidates. They don't do that now but an in-person interview can provide a lot of information about a candidate (good and bad) that might not otherwise emerge from a paper application and reference checks.

Also, it might be useful to establish some criteria about what it is you are looking for. What makes a good judge? There is a lot written on that topic. Some say wisdom, some say smarts, some say learned-in-law, and some say good character. For me it is obvious; a good judge is someone with good judgment.

For all its flaws, I honestly believe the system we now use produces very good judges and the rest of the world seems to agree. But we could do even better if we advertised for vacancies, interviewed the applicants and, from that group, appointed the best of the bunch.

Allan Fineblit is CEO of

the Law Society of Manitoba.