The Judicial Appointment System Works

  • July 16, 2019

By Justin Robichaud, President

Recent judicial appointments in New Brunswick have caused a stir in the media, and the Canadian Bar Association – New Brunswick Branch (CBA-NB) wishes to make a few key clarifications regarding this matter. In particular, we would like to review the appointment process and the professional merit of the lawyers in question to remind the public of the checks and balances in place to protect the public interest when appointments are made to our judicial system.

First and foremost, we emphasize that the journalistic coverage of this matter went no further than a partial analysis of the political contributions and personal or familial ties of the nominees. This approach downplays the importance of the process and of the track record of these jurists, as well as the soundness of our justice system. Civic engagement should not erect barriers to other opportunities, nor should it disqualify an individual from holding any particular position. A candidacy cannot be judged solely on political contributions. The entire application must be considered, including a candidate’s legal, social and community contributions.

Let us recall that every federal judicial appointment must be made following a transparent and clearly established process in use since 1988 and subject to regular revisions. An independent advisory committee composed of representatives from multiple organizations, including a designate from the Canadian Bar Association, the Chief Justice of New Brunswick and the Law Society of New Brunswick, is crucial to the process. This committee oversees all appointments of judges to provincial and territorial superior courts, courts of appeal, the Federal Court of Appeal and the Tax Court of Canada.

In order to be considered for a federal judicial appointment, a lawyer must submit an application that includes a questionnaire, an authorization form and a criminal background check consent form. The judicial advisory committee then thoroughly vets the applicant, checks their references and can also hold interviews with the selected candidates. Next, the committee issues its recommendations to the federal Minister of Justice, who, in turn, issues his or her final recommendations to the Cabinet. Only those applicants deemed “highly recommended” or “recommended” by the committee are listed on the slate of judicial candidates considered by the government.

The New Brunswick Bar is relatively small and composed of highly active members who know each other very well. We are of the opinion that the recent appointments were made based on merit, as the individuals in question have led successful legal careers in our province. Their respective contributions to the justice system and the legal profession must not be pushed aside in favour of their past political contributions or personal or familial ties to politicians. Let us also recall that judges may not make public statements and are therefore unable to defend themselves—which explains their silence in the matter.

Lastly, the Canadian Bar Association – New Brunswick Branch is satisfied with the manner in which the appointment process was conducted, believes it was carried out with transparency and according to the established rules, and hopes that our insight provides the public with a more nuanced understanding of the subject at hand.