Harper’s approach isn’t unusual and isn’t likely to produce dramatic changes in lower courts

Historically, the federal government’s judicial appointments to the provincial superior trial courts, provincial courts of appeal and the Federal Court have generated less scrutiny than appointments to the Supreme Court. Under the Harper government, though, appointments to courts below the Supreme Court have drawn considerable attention. Most often analyses point to how things are different under the Conservatives. These differences — most often explicitly or implicitly considered to be undesirable ones — include the process by which judges are appointed, who is appointed and what kinds of decisions the appointees will make.

Here I try to take more of an empirical and contextualized overview of the process, the appointees and the decision-making. In doing so, I note that there are also some patterns of continuity under Stephen Harper, and that some of the differences may not have as much practical import as critics might fear or as Conservative supporters might hope. I conclude with some thoughts about where we go from here in the appointment process, arguing that we need to be conscious of the various normative goals and assumptions at work.

Not long after forming government in 2006, the Conservatives made changes to the Judicial Advisory Committees (JACs) that review applications for judicial vacancies below the Supreme Court level. (The JACs do not formally screen judges who are “elevated” from provincial trial courts or from superior trial courts; they provide only a brief précis about each judge.) The government made the representative of the judiciary a nonvoting chair of the committee, eliminated the “highly recommended” category and added a police representative who would be chosen by the government. As a result of these changes, the federal government now appoints a majority of the voting members of the JACs. (The other members of each committee are members of the provincial bar and Law Society and a representative of the provincial attorney general.) Despite the legitimate concerns raised about these changes, the JACs appear to be operating largely as they did in the past. More than half of the applicants continue to be not recommended by the committees, and a JAC member interviewed recently in the Globe and Mail talked about the degree of consensus under which the committees operate.

This same person did, though, lament the elimination of the “highly recommended” category. Yet, when the category existed, governments would not provide any statistics as to how many individuals from this category were chosen, thereby reducing its utility in directing governments to choose the “best” candidates.

Thus, overall, the JAC system continues to be a screening mechanism that tends to weed out weaker candidates, but the process is opaque and leaves considerable discretion for the government to choose appointees on the basis of various factors, including patronage.

On the topic of patronage, reports indicate that regional ministers play an important gatekeeping role in the process under Harper, such that, at the very least, they eliminate individuals who may be supporters of other parties. This role for the regional ministers is consistent with what happened under the Brian Mulroney and Jean Chrétien governments as well.

Therefore, the Harper government’s process of appointing judges below the Supreme Court appears broadly similar to how other governments have made such appointments since the Mulroney government introduced the JAC system in 1988. Are the appointees themselves different?

Nearly 40 percent of appointees under the Mulroney and Chrétien governments had some affiliation with the party in power.

Much has been written about the percentage of women who have been appointed under the Harper government, so I will focus on questions of political affiliation and ideology and, to some degree, professional background. Like previous governments, the Harper government has appointed many individuals who have had major affiliations with the party (running for office, organizing campaigns) and more minor affiliations (making a donation). As with previous governments, those affiliated with other parties are rarely appointed by the Conservatives. However, as under previous governments, there are also a number of Harper appointees who appear not to have a clear prior political affiliation. (Nearly 40 percent of appointees under the Mulroney and Chrétien governments had some affiliation with the party in power, with interesting regional variations. Although I do not have systematic data on Harper’s appointees, after looking at news stories and website tallies of Harper government patronage I would estimate the percentage to be roughly similar for the Conservatives.)

Critics contend that even if some appointees are not “political” in the partisan sense, they have been chosen on the basis of their political ideology or legal philosophy. (Even though these two things are different conceptually, my sense is that critics view the Conservative concept of a more deferential judiciary to be a judiciary that is deferential to laws that the Conservative Party favours, particularly in criminal justice.) There are certainly some examples of appointees’ scholarship or past associations with certain organizations suggesting that they have conservative ideological orientations. However, examples exist of Liberal governments appointing individuals from organizations such as human rights commissions or the Women’s Legal Education and Action Fund, which could suggest Liberal political orientations. One gets the impression that the Harper government is paying more attention to ideology than previous governments, but without good empirical data it is difficult to assess the degree to which this has influenced the appointment process. (In a study of the influence of patronage under Mulroney and Chrétien, my colleagues and I were surprised by the number of contacts who would say that patronage was overwhelming in the system but could then point to only selected examples of appointees who were clearly connected to the party in power.)

One empirical proxy for ideology that has been used in the media is the professional background of the appointees, in particular the number of former Crowns who have been appointed by the Conservatives. While it is worth noting that the Harper government has appointed more former Crowns than previous governments, media stories tend not to mention that a number of these people have had some defence practice in their backgrounds as well (just as defence counsel sometimes have done stints as Crowns or Crown agents on a contract basis).

Despite the lack of good data, given what we know about some of the Harper appointees, including some major partisan connections, it is fairly safe to conclude that a solid number of them will have a different ideology when compared with Liberal and (to a lesser extent perhaps) Progressive Conservative appointees. What might this mean for judicial decision-making?

We may see somewhat different outcomes from those Harper appointees with rather strong conservative tendencies, but the overall impact on the law will be modest.

A number of factors have been explored to help explain judicial decision-making. These include the facts and the law of a case, how a judge perceives his or her role (including how much deference should be paid to other branches of government), personal characteristics (such as gender), professional background and even whether a judge is hungry. What about the role of ideology? Although relatively few empirical studies of decision-making have been conducted on courts below the Supreme Court, some statistical results suggest that political ideology (most often measured by party affiliation or party of appointment) correlates with decision outcomes in certain areas of the law, such as criminal justice and refugee claims. (Professional background has been mostly shown to have only a modest impact, if any, on decision-making, and gender has shown differing impacts depending on the type of law and the nature of the particular study.)

It is not surprising that ideology would have some influence in certain areas of the law where judges have discretion and where the nature of the cases makes them relatively more suited to be seen through an ideological lens (even if subconsciously): for example, cases involving criminal justice or Charter rights. However, studies of decision-making on appellate courts also reveal the degree to which the influence of ideology appears to be constrained. Statistical analyses of provincial court of appeals decisions indicate a very high degree of unanimity (often over 90 percent in any given year), regardless of panel composition. This suggests that whatever ideological dispositions the judges may have, they are limited by organizational norms and processes, such as the need to review for errors of law in the lower courts and collegial decision-making.

Take, for example, a relatively recent appellate case revolving around a series of text messages that a police officer exchanged with unknown third parties using the accused’s cellphone, which was seized from a suspect possessing a small amount of cocaine. The messages were used to help convict the accused of drug trafficking. The appeal court ruled unanimously that, although the trial judge should have been more explicit in conducting one particular analysis, the texts were reliable and that the probative value of the evidence outweighed any prejudicial effects on the accused. The decision was written by a Harper appointee who had been primarily a criminal defence lawyer (with a brief time as a Crown early in his career) and had no discernible political affiliation prior to appointment. One of the judges who signed on to the opinion was a Chrétien appointee with major ties to the Liberal Party, and the other was a Harper appointee who had major connections with the Conservative Party.

As for trial judges, although we need much more study of trial court decision-making in Canada, the lack of discretion as to what cases come before them and the possibility of appellate review, among other factors, will serve to constrain the role that ideology might play. This is not to say that ideology may not play a role in how trial judges decide certain legal questions within established parameters, such as within a range of criminal sentences. Lawyers are familiar with trial judges having tendencies on certain legal issues that, all other things being equal, may reveal some ideological influences.

My prediction about decision-making, therefore, is that in some areas of the law we may see somewhat different outcomes from those Harper appointees with rather strong conservative tendencies when compared with Liberal appointees, but the overall impact on the law will be modest. The role that ideology plays in decision-making interacts with and is bounded by a host of other nonlegal and legal factors, including philosophies about judging, existing legal boundaries and collegial decision-making at the appellate level. And it should be kept in mind that the most controversial legal issues, including those involving the Charter and public policy, will be decided by the Supreme Court of Canada.

Some commentators welcome the ideological diversity that some of the Harper appointees might bring to the bench, while others are clearly troubled that conservative ideology might play any role in shaping decisions and the law. This raises the larger question of how desirable it is for political preferences to be injected into the judicial selection process and how that might relate to judicial decision-making and independence.

The current federal judicial appointments process needs to be reformed, as it lacks transparency and easily allows for patronage to influence the process. This means that friends of the party are at times appointed at the expense of better candidates, which then may discourage good candidates from applying because they do not have the proper political connections. Some individuals and groups have suggested that the federal government adopt the kind of nominating-style committee used by various provinces and other jurisdictions such as England. Rather than simply screening candidates for judicial appointment, these nominating committees forward a short list of the “best” candidates, from which the government must choose. There is much to recommend in such a system, particularly its potential to reduce the influence of patronage.

However, various criticisms have been made about this approach. First, concerns have been raised that such a system might limit gender and ethnic diversity on the bench if older, white males are considered to be the most meritorious lawyers to be appointed or judges to be elevated. (The English system has been critiqued on this issue and tweaks to the system have been made.) Second, controversies have erupted in some jurisdictions over governments asking for new short lists or governments appointing their own partisans to the selection committees. Third, under such a system the “best” candidates might be considered technically skilled lawyers or judges (seeking elevation) who “play it safe” in their decision-making. This could lead to stagnation of the law. Fourth, by emphasizing legal merit and limiting the ability of governments to appoint ideologically like-minded individuals, such a system assumes too much of a separation between law and politics and could unduly insulate the law and courts from the winds of political change. Moreover, accountability for decisions is lacking.

Electing judges, either directly or in a retention election after appointment, as do many US states (and a few other jurisdictions in the world), is a system of appointment that addresses some of the potential drawbacks of a nominating system. It is predicated on the assumption that judicial decisions are political to some important extent and therefore there should be popular input into choosing judges and keeping them accountable through retention elections. Critics of course have pointed out a number of problems with this approach. The biggest one is the potential for injustice to be done against disadvantaged minorities and individuals assumed to be guilty of criminal conduct. There are also increasing concerns about the role of money and interest groups in elections and how that might corrupt the decision-making process.

This overview of some alternatives to our current system highlights that how we appoint judges depends on how we wish to balance values like independence and accountability and what our assumptions are about the relationship between law and politics. I will end not by recommending any system in particular but by advising that we resist suggestions that a constitutional challenge be launched against the federal judicial appointment system, such that the judiciary may weigh in and possibly fashion a new system. How we appoint judges is a fundamental question for the political community and should be decided by representatives of the political community after thoughtful deliberation and consultations. While we may despair of that ever happening, reforms in other jurisdictions can provide us with a glimmer of hope.