The Illusion of Fairness: How failed judicial appointment reforms betrayed justice

In arrogantly waiting for unicorn judicial appointees to appear, Canada’s Liberal government has allowed justice to be denied to everyone - particularly minority communities.

There’s no shortage of data that illustrates how members of minority communities face barriers to accessing justice within Canada’s criminal justice system, either as an accused or as a victim.

This issue has worsened over the last decade. One particular indicator in this regard is that hardly a week goes by wherein another alleged perpetrator of serious crimes walks free due to no judge being available to hear the case against them.

This phenomenon isn’t a symptom of the pandemic, either. Before COVID restrictions hit the judicial system, nearly 800 cases had already been thrown out due to a lack of judges. Since then, the number has skyrocketed. In 2021, in Alberta alone, over 3000 cases were at risk of being thrown out due to this problem. The problem is now so acute that a federal court judge recently ruled that the federal government must do something to solve the issue.

The real kicker is that the solution to this problem - again, that disproportionately affects members of minority communities - is obvious. Canada’s federal government, led by Liberal Prime Minister Justin Trudeau, needs to appoint more judges. 

So why aren’t they?

In a stroke of extreme irony, one of the reasons lies in Mr. Trudeau’s failed attempt to make the judicial appointment system more just.

To be clear, removing barriers to accessing justice is a laudable goal. Data shows that women and other minority groups are often disproportionately impacted by crime. They are also less likely to have the resources, knowledge, or network to advocate for themselves when justice is delayed or abrogated. They're also less likely to seek justice if they don't believe it will ever be meted. In turn, criminals are more likely to perpetrate crimes against them if they feel the system will let them act with impunity. 

But piss-poorly executed pursuits of laudable goals that lead to adverse consequences has become a hallmark of Mr. Trudeau’s government. 

In 2015, upon taking office Mr. Trudeau announced that he intended to reform the judicial appointment system with a focus on ensuring more members of minority communities were put on the bench. The thinking was that by making more appointments in this vein, it could help address some of the barriers to accessing justice that minorities experience.

Up to that time, the previous Conservative government had a record of largely filling judicial vacancies on time, as well as appointing women at a largely a similar percentage of those who had applied to be appointed (around 30-40% at the time). By the end of their mandate, former Prime Minister Stephen Harper’s government had achieved an approximate overall 40% occupancy rate of women in judicial positions. But in the first year of Mr. Trudeau’s tenure, while he was considering reforms to the appointments process, over 60 judicial vacancies accumulated. This problem quickly became so bad that it alarmed the chief justice of the Supreme Court of Canada, who noted that the vacancies were delaying justice. 

Making the matter even more complicated was that 2016 also saw a landmark ruling issued by the Supreme Court. The July 2016 ruling required cases to be heard within a set period of time (now widely referred to as the "Jordan decision"). The Jordan decision should have lit a fire under Mr. Trudeau’s rear to fix the delays in the judicial vacancy problem. Instead, in early October 2016, while the ink was still wet on the Jordan decision, Mr. Trudeau proceeded with his overhaul of the process of appointing judges, adding more complexity into what had rapidly become an already slow and opaque process.

At the time, the Globe and Mail reported that under the new Liberal system people who applied to be federal judges would be asked about their race, gender identity, indigenous status, sexual orientation and physical disability. The assessment criteria for potential appointees was also updated to include the same. The assessors would also be able to note a preference for one applicant over another by using a new, ill-defined and subjective "highly recommended" category. Said differently, regardless of intent, Mr. Trudeau’s changes allowed more room for political interference, opacity, and bureaucratic inertia into a process that desperately needed streamlining and transparency.

Fast forward nine years to today. Canada’s nearly decade long deficit of judges - and the thousands of cases that have been nullified due to the same - implies that Mr. Trudeau's government didn’t give much thought to preventing judicial vacancies from further accumulating under their new appointments process, particularly in light of the Jordan decision. Rather, the number of vacancies that have languished over the years (and the number of criminals that have walked free because of them) suggests that the Liberal’s strategy for increasing diversity in Canada’s judicial benches largely relied on waiting for unicorn candidates to magically present themselves, without a care for the consequences. 

If the Liberals want to prove otherwise, their lack of transparency regarding the rejection of qualified applicants hasn’t helped their cause. 

It’s a well known fact that there are many applicants for judicial positions who have passed the approvals process who are sitting in the queue. And there are many who have passed the approvals process but have been rejected, for reasons the government refused to disclose, even on an aggregated basis. The federal government's judicial appointments website hosts a lot of information regarding the statistics about the demographic breakdown of judicial appointees but precious little information about why hundreds of applicants for dozens of vacancies have been deemed worthy to assess but ultimately were rejected. 

I directly asked the Liberals what these reasons were. Their response was as follows:

“ a pool  of qualified candidates is created, comprised of all “highly recommended” and “recommended” candidates. The Minister then selects from that pool, appointees for any to fill vacant positions that may arise…….When making judicial appointments, a number of factors are considered, including the strength of the  application, the needs of the Court, and the candidate's areas of expertise. Whether someone is highly recommended or recommended is one factor that is taken into account, among many important considerations,  in exercising the Minister’s prerogative to appoint the best candidates to the judiciary.”

Translation: the process for appointing judges has always been political, it’s now even more so.

Circle back now to Mr. Trudeau’s stated objective for his 2016 judicial appointment process reforms - increasing diversity in judicial appointments to improve the judicial system. However, knowing that maintaining a process that has delayed justice because it failed to do what it was supposed to do is lunacy. The system for appointing judges needs to be overhauled by removing the real barriers to making appointments that will bolster the justice system.

Two of those barriers should be relatively easy to manage. 

For starters, the Liberals need to remove Liberal partisanship as an apparent qualifier to become a judge. For example, in 2019 senior Liberal cabinet minister Dominic Leblanc became embroiled in a scandal wherein his family, friends, and neighbours won 5 of 6 judicial appointments in a short time. Then, in 2023, a landmark, eight-month investigation by the Investigative Journalism Foundation found that over 76% of Trudeau-appointed judges were Liberal party donors. Several senior academics raised concerns about this seeming cronyism, particularly in light of the number of cases being dismissed due to the combination of judicial vacancies and the Jordan decision. This is a real, quantifiable issue which has likely become more problematic with Mr. Trudeau’s addition of the "highly recommended" category to the judicial appointments assessment process.

Essentially, in Trudeau's system, anyone applying to be a judge - including members of minority communities that encounter economic and other barriers to building the resume needed to qualify for a federal judicial appointment - appear to also have to have found time and resources to show themselves sufficiently partisan to land on the bench. This needs to end.

The second change that needs to be made is the bureaucratic inertia that the Liberal government has nurtured in virtually every system of the federal government, from passport processing to procurement. Judicial appointments were no different. The system is slow, sluggish, and opaque. A fire needs to be lit to loosen bottlenecks.

The rest of the barriers are more challenging. They’re what Mr. Trudeau should have spent nine years addressing, as opposed to making the arrogant assumption that unicorn judicial candidates would simply present themselves to him.

To begin, six years ago, Canadian Lawyer Magazine outlined the skyrocketing, punch-in-the-gut cost of becoming a lawyer in Canada. Their article cited evidence that most law graduates carried an average debt burden of over $70,000. Said differently, unless someone comes from extreme privilege, there are limited avenues to get a law degree in Canada without taking on a lot of personal debt. This is hardly a great position to start from in terms of nurturing a class of candidates from underprivileged communities into Canada’s judiciary. Yet, Mr. Trudeau has given little scrutiny to things like the exorbitant, and in some cases arguably unjustified, cost of getting a law degree charged by many academic institutions in Canada.

This fact overlaps with the under-discussed reality that someone in Canada is more likely to be appointed to the bench if they've served as a Crown Prosecutor. The path to that role for a new law grad usually starts with an entry-level junior position within the government that, on average, pays between $70-$80k per year. The pinnacle of this career stream could be viewed as a judicial appointment, of which there is no guarantee (see the partisan, oblique appointment process above). It's a goal that could also take decades to achieve and comes with a salary that tops out at approximately $350k per year. 

While that's certainly not a salary trajectory to sneeze at, it's worth comparing to a new law grad's potential career path in the private sector. That path usually starts in the neighbourhood of $100k and could result in millions on a faster, theoretically more defined path towards an executive job or a law firm partnership. While no entry-level law job is a walk in the park, to a young Canadian carrying $70k worth of student debt in today's unaffordable Canadian housing market, the choice between a more lucrative, clearly defined career in private practice as opposed to choosing a public sector prosecutor gig may be pretty straightforward for top law grads with the best legal minds. 

On top of that, the dearth of public prosecutors and judges, coupled with a massive spike in violent crime across Canada, has also resulted in a wildly increased workload for those who already serve in the system. This workload often includes a heavy set of work outside of the time spent in the courtroom and has only increased due to the increased volume and complexity of cases. So, even for an experienced lawyer in private practice, the prestige of being appointed as a judge might be quickly eclipsed by the potentially huge pay cut and workload increase associated with a judicial appointment.

All of this isn't to suggest that the law profession is hard done by or that it’s presently impossible to appoint a diverse set of skilled judicial appointees. Rather, the legal system as a whole needs to immediately disabuse themselves of any lingering notions that the system is Mr. Trudeau has built is working, and push the government to change course.

Mr. Trudeau's failure to manage the judicial appointments system has affects all Canadians. But the fact there is a disproportional impact on woman and other minorities underscores just how much Mr. Trudeau has made the judicial system less just, not more.