Justice Richard WagnerTony Fouhse/The Globe and Mail
Mr. Justice Peter Lauwers attained a rare, professional pinnacle this month when he was appointed to the Ontario Court of Appeal, the court of last resort for almost a thousand cases each year.
Yet, very few Canadians would have had any inkling of his accomplishment.
Aside from a short entry posted on the federal Department of Justice website, there was none of the publicity or scrutiny one might expect when a judge ascends to one of the country's most elite benches.
Even Jacob Ziegel, a University of Toronto law professor who ranks as a pre-eminent specialist in the judicial appointment process, was surprised to learn of Judge Lauwers's appointment.
"I hadn't even heard about it," Prof. Ziegel said in an interview.
The Lauwers appointment personifies an abiding concern for many in the legal field, said Prof. Ziegel. Little-known judges are handed a judgeship by the federal government, he said. Then, they spend years or decades rendering important rulings that can affect millions of people.
Troy Riddell, a political-science professor at University of Guelph, points out that only one or two per cent of the cases heard by provincial courts of appeal are ever heard by the Supreme Court of Canada.
"The folks are absolutely important," he said. "For most cases, they are the court of last resort."
In a recent interview, the newest Supreme Court of Canada appointment, Mr. Justice Richard Wagner, shone a partial light on the situation when he suggested that every appellate-court appointee could benefit from the sort of public questioning sessions that Supreme Court appointees now undergo.
But critics say that Judge Wagner's suggestion does not come to grips with the real problem that plagues the appointment process: Governments have carte blanche to sift through hundreds of names and choose the one they desire. "It is all politically driven," said Prof. Ziegel. "We mustn't be fooled by this. When a judicial vacancy arises, the Minister decides who is going to be appointed.
"We need an independent nominating committee that represents major constituencies inside and outside the law, including the judges themselves," Prof. Ziegel said. "In Canada, we just do not have transparency and balance in the nomination process."
By law, superior-court and appellate-court judges are appointed by the federal government. Applicants are first screened by a regional Judicial Advisory Committee, whose members are selected mainly by the federal government and made up of established lawyers, a judge and a representative of the police.
But the committees are not allowed to rank nominees. They can only designate each as being "qualified" or "unqualified," leaving the federal government a large pool of hundreds of candidates who are merely "qualified."
In marked contrast, a nomination committee like the one Prof. Ziegel proposes would interview candidates and produce a short list of the best candidates.
"A limited short list is the key," agreed Prof. Riddell of Guelph. "It is really important because it gives the government much less latitude. Right now, we have no idea whether they are choosing the best people available."
David Schneiderman, a University of Toronto law professor, said that the new Supreme Court appointment process is an improvement, but still has flaws.
An all-party committee of MPs works hard to come up with a short list of nominees, he said, but government members dominate the committee. As a result, he said that the short list prepared by the committee produces inevitably reflects the government's preferred candidates.
"The system looks like it tilts from beginning to end in favour of the government's preferred candidates," Prof. Schneiderman said. "I wonder why we would want to institutionalize the current process when we could envisage better ones that do not stack the deck, so to speak."
Prof. Ziegel said that politicians often criticize the appointment system until they get into power.
"The whole system is broken," he said. "You have got to take it out of the government's hands and get an independent committee that selects only those candidates who are highly recommended.
"I can't think of any other profession that would accept someone for a senior position who is merely acceptable. If you were selecting a senior surgeon, you would want the best available; not the second or third best. Yet, in law, we seem to think this is somehow acceptable."