At the risk of discouraging the “best” candidates from applying for appointment to the judiciary, Quebec’s system of nominating judges should bolster disclosure requirements to enhance transparency and accountability while constraining the discretionary powers of the Minister of Justice by compelling him to select from a short, if not ranked, list of candidates, according to series of comprehensive and wide-ranging recommendations made by experts commissioned by the Bastarache Commission.
Under scrutiny by a provincial commission of inquiry headed by former Supreme Court of Canada justice Michel Bastarache following allegations by a former justice minister that the judicial appointment process was tainted six years ago, the experts underline that Quebec’s system of judicial appointments is sound and does not pale in comparison with other provinces. But the four authors, all of whom are university professors who individually penned reports that were submitted to the commission, also note that the Quebec’s nomination system is not beyond reproach.
“Mistakes happen,” observes Roderick Macdonald, F.R. Scott Professor of Constitutional and Public Law at McGill University, in his 45-page report. “Sometimes even conscious mistakes happen. Sometimes systems fail. Still, the fact that there may have once been system failure does not mean that the entire system needs to be changed from the bottom up. ”
Questions, however, surrounding the judicial selection committee process, the nature and scope of the Minister of Justice’s discretionary power, and the role that partisanship should play in the nomination process have surfaced.
Under the Regulation respecting the procedure for the selection of persons apt for appointment as judges (Regulation), the Minister of Justice must publish a notice in a newspaper, inviting interested persons to submit their candidacy. An ad hoc selection committee — composed of a judge of the court where there is a vacancy, a lawyer, and a person who is neither a judge nor an advocate – assess the experience as well as personal and intellectual qualities of the candidates. After the committee submits its report on candidates it considers “apt for appointment as judges,” the Minister then recommends an appointment among the shortlist of candidates. The names, however, of candidates for the selection procedure, the report of a committee as well as the documents attached to a registration are confidential.
Described as the “systemic lynch-pin of the entire system,” the responsibility of the expert judicial selection committee lays with assessing the professional values, professional merit and experience of candidates who apply for the job based on criteria outlined by the Regulation. Aside from highlighting the fact that “there is no such thing as an ‘objectively best’ candidate” because such decisions are subject to the same “vagaries of decision-making as any other human decision-process,” Macdonald asserts that there is no way of getting around political considerations in any process of judicial selection, “no matter how scrubbed of such considerations the preliminary stages of appointment may be.” Members of the selection committee, after all says Macdonald, are political appointments. Macdonald suggests that perhaps the Quebec government should amend its appointment process for the selection committee and adopt a similar procedure to the appointment process of the provincial auditor general. Under Quebec’s Auditor General Act, a person is appointed auditor general upon a motion made by the Prime Minister, but it must be passed by at least two-thirds of the Members of the National Assembly.
“We have a number of parliamentary institutions where the person who occupies the office is meant to be responsible primarily to Parliament, and not the Government,” said Macdonald. “I’m thinking of watchdog appointed officials who are granted a degree of security of tenure.”
Jocelyn Maclure, a professor at the Université Laval, suggests a different tack. Noting that it would be “nearly irrational for the government not to choose a partisan,” he recommends handing the power to nominate lawyers interesting in becoming a member of the selection committee to a committee established by the Barreau du Québec who would be entrusted with choosing lawyers known for their competence and integrity. In other words, the Barreau, without consulting the Ministry of Justice, would select lawyers who would sit on the selection committee. “Handing the decision to the (Barreau’s) committee would reduce the risk of impertinent factors such as political allegiance and friendship from influencing the decision,” said Maclure in his 36-page report, who wonders aloud why the identity of the members of the selection committee are still kept confidential once their mandate is completed.
Maclure also proposes that the lay person who is part of the three-member selection committee be approved by a majority of the Members of Quebec’s National Assembly. At present, “here too, the procedure permits the minister to choose a citizen who has ties with the party in power,” added Maclure, who advises the government to select lay members based on their achievements in another sector of activity as well as their involvement as citizens in the public sphere.
Besides dealing with the judicial selection committee process, the experts also delved into the nature and scope of the Minister of Justice’s discretionary power. Contrary to public perception which tends to believe that discretionary power confers upon its holder unmitigated liberty in the absence of formal and explicit limits in a piece of legislation, there are limits to discretionary decision-making, points out Geneviève Cartier, a law professor with the Université de Sherbrooke, dealt exclusively with the notion of discretionary power in her report. The Supreme Court of Canada in Baker v. Canada (Minister of Citizenship and Immigration),  2 S.C.R. 817, held that discretion must be exercised in accordance with the boundaries imposed in the statute, the principles of the rule of law, the principles of administrative law, the fundamental values of Canadian society, and the principles of the Canadian Charter of Rights and Freedoms, notes Cartier.
“The problem, in my opinion, lies with the moment that the list is drawn up and given to the executive,” said Cartier. “We know what criteria the selection committee use as they are inscribed in the Regulation, but we do not know on what basis the government chooses candidates who are apt. We must inscribe the criteria the government used to nominate a candidate in a regulation in the same way that we do with the criteria the selection committee must take into account when selecting a candidate.”
Like Macdonald, Cartier also proposes a substantive appointment statement that would explicitly spell out the factors that the government took into consideration – and did not take into consideration — when nominating a candidate. While it would be “wise” to give the government some leeway to deal with exceptional or atypical situations, Cartier says these steps would constrain the Minister of Justice’s discretionary power, without eliminating it.
In a wide-ranging report that examines the contemporary practices of selecting trial court judges across Canada, Peter McCormick says that a ranked list selection of candidates is preferable to a short-list, and a single-name selection even better. McCormick points out that in Ontario the selection committee is charged with recommending at least two names and ranking them as well, a process he describes as a “somewhat greater intrusion into the discretionary choice of the minister.”
“A well-designed committee is perfectly capable of doing the heavy lifting of selecting judges, rather than being limited to the preliminary work of a first sift,” said McCormick in his 116-page report.
Recommendations made by Professor Roderick Macdonald:
- The government should be constrained to appoint judges only candidates who have been certified by the selection committee.
- The criteria to be applied should be elaborate, detailed, couched wherever possible as bright-line rules, and publicly available.
- The Committee should be empowered to set a high standard for determining which candidates are qualified for judicial appointment.
- While the deliberations of the Committee should remain confidential, candidates who have applied to the Committee and who have been declared not qualified should be entitled to see a copy of the reasons for the decision taken.
- The specific composition of the Committee – that is, the categories of persons who should be members of the Committee – should be set out in the Courts of Justice Act.
- Once appointed, the members of the Committee must be given a status that would conduce to their independence as decision-makers.
- The integrity of the process also requires that each appointment be accompanied by a substantive “appointment statement” issued by the appointing government.
Recommendations made by Professor Peter McCormick:
- An independent nominating commission is the appropriate way to select judges.
- A single purpose nominating committee is preferable to a multi‐purpose judicial council.
- A standing committee is preferable to an ad hoc committee.
- A larger committee is preferable to a smaller one.
- A reactive committee is preferable to an anticipatory committee.
- A short list committee is preferable to a pool‐creating committee; and a ranked list, or single name selection, committee is preferable to a simple short list committee.
- A statutory committee is preferable to an executive order committee.
- A substantial and active lay/public member component is preferable to a small and token one.
- An extended formal set of criteria for appointment is preferable.