There has been much discussion about the process of choosing our Supreme Court judges. But there's more to consider than just the appointments to our highest court.
Take the case of Mr. Justice Paul Cosgrove of the Ontario Superior Court. Judge Cosgrove, a one-time federal Liberal cabinet minister, is the subject of a recently announced inquiry by the Canadian Judicial Council. The Ontario Court of Appeal has sternly criticized Judge Cosgrove's courtroom tactics toward the Crown on at least three occasions, questioning his objectivity and his fairness.
The more important questions raised by the inquiry, however, have to do with the system of federal appointments to provincial superior courts and courts of appeal -- courts below the level of the Supreme Court of Canada -- where political patronage still plays a major role.
There are currently about 1,000 active and supernumerary federally appointed judges. The judges are well paid (their annual stipends are $ 300,000 or more) and they collect generous pension benefits on retirement. They enjoy security of tenure and can only be removed after a full judicial inquiry and by a joint resolution of the Senate and House of Commons.
For these reasons, there are many more applicants for judicial appointments than vacancies. Federal politicians of all stripes, since the earliest days of Confederation, have looked on judicial appointments as a rich source of patronage.
Judicial appointments are notionally made by the Governor-General in Council on the advice of the cabinet. In practice, the justice minister submits to cabinet the names of persons to fill judicial vacancies. The minister's selections are based not only on consultation with senior judges and lawyers, but also on political input. This input may come from the prime minister, the minister responsible for patronage in a particular province, or a minister particularly aggressive in patronage matters. There is no transparency in the system and no accountability to Parliament or any other body.
In 1988, the Mulroney administration established a system of provincial advisory committees to assist in the review of applications for judicial office.
However, the committees only report to the minister of justice on whether an applicant is recommended, highly recommended, or not recommended for appointment. They are not required to interview applicants and are not asked, or authorized, to compile a short list of the best qualified candidates to fill a vacancy.
More discouraging, there are no screening requirements at all for elevations from the trial bench to appellate courts -- much to the dismay of many able trial judges whose merits are regularly ignored in favour of appointees who are more politically congenial.
In 1991, we published an empirical study of judicial appointments during the first four years of the Mulroney administration. We found that 47.3 per cent of the appointees had major or minor linkages with the Conservative government.
These numbers are no aberration.
There is every reason to believe that political patronage played as prominent a role during the tenure of Jean Chrétien, as it did during the Mulroney era. During his political career, Pierre Elliott Trudeau shared the same approach. The 16-year-old provincial screening committees have done little to discourage political favouritism.
As much as we debate the need to reform our Supreme Court appointment system, there is an even greater urgency to introduce an exclusively merit-based and non-partisan system for appointments below the Supreme Court level. Holding an inquiry after an appointment to determine a judge's fitness for office is like shutting the proverbial stable door after the horse has bolted.
Peter Russell is professor emeritus of political science, and Jacob Ziegel is professor emeritus of law, at the University of Toronto