When Provincial Court judge Herbert Allard retired in 1996, the Progressive Conservative government unabashedly chose the PC party’s former president to replace him. Not only did Ted Carruthers once head the party, he was also one of its biggest donors.
The appointment by the justice minister of the day, Brian Evans, prompted an unflattering headline in the Calgary Herald: “New judge denies PC patronage brought job.” The Calgary lawyer, who had stepped down as party president two years earlier, argued “independent checks and balances” had ensured he was an appropriate choice. Cabinet selected him from a list of lawyers that had been vetted by the Alberta Law Society and the Alberta Judicial Council, he said. “You can’t just pick a guy off the street,” he told the Herald at the time.
The scandal was short-lived and nothing came of it, but Allard, now 87 and one of Alberta’s last non-lawyer judges, still remembers it as “blatant” patronage. “If [judges] are political patronage appointments, they are contaminated from the beginning,” he says. “That’s worse than being unelected and unaccountable.”
“If [judges] are political patronage appointments, they’re contaminated from the beginning. That’s worse than being unaccountable.” -retired Provincial Court Judge Herbert Allard (pictured above)
While allowing that Carruthers is “a very nice man” and a capable judge, Allard says he has a dim view of any governing party rewarding party officials by appointing them to the bench. Alberta’s appointment process has changed since 1996, but its critics contend the optics are as bad as ever, the government is still able to reward its friends, and the process may even be colouring the type of justice Albertans can expect.
Alberta’s first judges were called stipendiary magistrates and were essentially paid justices of the peace. One of the first and most famous was North-West Mounted Police assistant commissioner James Macleod, who founded Fort Macleod and Fort Calgary before being named to the North-West Territories Supreme Court. He captured and tried whisky traders and other outlaws. He presided over criminal and civil cases alike, travelling by horse-drawn buggy to conduct court in communities across southern Alberta.
Historically, judges for the lower courts established under s. 92(14) of the Constitution Act 1867 were chosen at the pleasure of the provincial justice minister or attorney general. But beginning in the late 1960s in Ontario, provinces began to establish judicial councils to screen appointments in a bid to ensure judges were competent and to remove the perception of political influence. Since 1975 Alberta’s Judicial Council (AJC), composed of representatives from the Alberta Provincial Court, Court of Queen’s Bench, Court of Appeal, the Law Society of Alberta and two members appointed by the justice minister, has screened all applicants for the provincial judiciary.
But in 1999 the province established a second committee, called the Provincial Court Nominating Committee (PCNC), which interviews applicants put forward by the AJC and recommends prospective candidates to the justice minister. According to University of Lethbridge professor Peter McCormick, Canadian provinces and many jurisdictions around the world have attempted to reduce government discretion in judicial appointments by creating nominating or screening committees such as the PCNC to recommend suitable candidates for the bench.
In this province, lawyers with at least 10 years of experience can apply for the bench; screening by the AJC includes vetting by the Law Society for complaints and violations. Approved candidates are interviewed by the PCNC, and if recommended they are put on the Provincial Court eligibility list, which at any given time has about 60–80 names. From that list, the justice minister selects names that he takes to cabinet for final approval.
“The convention is that [the minister] will not select a judge for appointment unless it’s from that list,” says Michael Niven, who was appointed chair of the PCNC five years ago by then-justice minister Alison Redford. While the process is not spelled out in law, both Niven and Justice Minister Jonathan Denis say they aren’t aware of any justice minister straying from that practice.
Over the past three years, through this process, the Progressive Conservative party has appointed 23 judges—10 in 2011, five in 2012 and eight in 2013. About 120 Provincial Court judges sit in four divisions: Criminal Court, Family Court, Youth Court and Civil Court.
The problem is, the screening process may be falsely reassuring. A large majority of the PCNC’s membership—eight of the 11 members, a mix of lawyers and laypeople—are appointed by the justice minister himself. The others are ex officio members representing the Provincial Court, Law Society and Canadian Bar Association–Alberta, whose representatives can vary based on who is available to attend meetings in a given month.
Many of the current nominating committee members have known connections to the Justice Minister’s party. Rob Dunseith was president of the provincial PCs during the Ralph Klein era. Dunseith has also supported the party financially, donating $11,800 to the campaigns of PC cabinet ministers David Hancock, Fred Horne and Heather Klimchuk, to the PC party and to the Edmonton-Riverview PC constituency association since 2004. Other members of the committee have also given financial support to the Conservatives, including the chairman, Michael Niven, who has donated $2,375 to former premier Alison Redford’s riding association in Calgary-Elbow since 2008. Suzanne Porteous, another Calgary lawyer who serves on the committee, also donated to Redford’s riding association. None of the eight PCNC members selected by Justice Minister Denis has a known connection to an opposition party. (Two positions were vacant at the time this story was written.)
Denis says the presence of Tories on the appointment committee does not indicate political influence on the part of his government. “What people do on their own time, I think, is their own business. There are some people on the list who have political connections, but there are a lot who don’t. It doesn’t form a factor in the [committee’s] selection.”
D’Arcy Depoe, past president of the Edmonton Criminal Trial Lawyers Association, says that while most judges on the provincial bench were appropriate choices, there’s “sometimes a perception and sometimes a reality” that connections to the PC party benefit anyone seeking a judicial appointment. Depoe stresses that not every Provincial Court judge appointed to the bench is a PC party supporter. “But many are,” he adds, “and if that’s an influencing factor it has the appearance of the government rewarding some of its friends… The justice system is supposed to be independent, and judges are supposed to be independent, and you want the best candidates to be appointed.”
Most Alberta lawyers are reluctant to speak out about the patronage question because they appear before judges every day. But Michelle Christopher, a lawyer and the executive director of student legal assistance at the University of Calgary, says that “for a long time, lawyers have said the Provincial Court appointment process in Alberta favours candidates with ties to the PC party.” Lawyers want merit-based judicial appointments, she says.
A retired chief justice of the Court of Queen’s Bench, Allan Wachowich, agrees that patronage is common in Alberta. “Some [judges] got there because they are just damn good lawyers, but that happens infrequently,” he says. “Generally speaking, these people have some connection some way or another, directly or indirectly, with the party or one of the politicians.”
Wachowich, who as a Queen’s Bench justice was appointed by the federal government, says he has seen candidates be approved by the AJC (on which he served) but be rejected by the PCNC “because the individual was not a member of the party in power.” Wachowich, who was on the bench for 36 years, says, “That to me was political interference. I objected to it. I still object to it.”
Some judges, however, back the justice minister’s view. A former deputy chief judge of the Provincial Court, Alan Lefever, who now serves as a supernumerary, or part-time, judge, contends there’s no need to overhaul the judicial selection process. “Most [appointees] do not have any apparent political connections. There are some who probably have had some active involvement with the government or with the PC party, but… they are good judges,” Lefever says.
Niven says he and members of the PCNC take their responsibilities seriously. “The appointment of a competent and independent judiciary is one of the tipping points of the administration of justice. You can have all the jails and all the courthouses and all the policemen and laws and rules and lawyers… but unless you have a competent and independent judiciary none of that matters,” Niven says. “Once the committee puts a name on the list and the minister appoints him, there’s no unappointing him [the AJC can only remove a judge in the event of misbehaviour or neglect of duty]. …So you don’t want to be making too many mistakes.”
He says it wouldn’t be appropriate to question candidates for judicial appointments about their political ties, but notes that some lawyers do volunteer information about their connections when asked about their work in the community. “I remember one fellow last year who had run as an NDP candidate,” Niven says. “He got through highly recommended by the committee.” His name is on the eligible candidate list, Niven adds.
Niven doesn’t believe the perception of political bias in the appointment of judges is a widely held view, and doesn’t believe his own donations to the PC party leave him open to criticism of bias. “Lawyers in general tend to be politically active, so the chances of a lawyer who is politically connected in some way to whatever party is probably higher than in the average population,” he says. “If you look at appointments over the last years, I don’t think you would see any particular flavour coming out there. …We see all sorts.”
If citizens are not reassured, they have little recourse. Party membership lists are not public, so Albertans have no way of knowing how many appointed judges are or have been members of the PC party. Party donations, however, have been a matter of public record since 2004. Elections Alberta records show that six of the 12 most recent appointments to the Alberta bench had donated to the PC party, PC constituency associations, PC candidates or PC leadership candidates, while none had donated to an opposition party. At least one of the appointees had donated to the PC party several times over the eight years preceding his selection.
Denis denies any specific political bias in his 2013 appointment to the bench of Nicholas D’Souza, a lawyer who donated $400 to his 2012 election campaign. “I do know him,” he says. “He did actually make a small donation in the last campaign. Just because someone may have political affiliation or express a willingness to work for one party or one candidate, I don’t think should disqualify them.”
Many judge appointees are PC-party supporters. “It has the appearance of government supporting its friends.” -D’Arcy Depoe, past president of the Edmonton Criminal Trial Lawyers Association
In Provinces where the governing party changes periodically, the influence of any one party is not as obvious, but critics contend that in a one-party province such as Alberta, where the Tories have ruled continuously for four decades, connections between the party and the bench are more prevalent and more concerning. And they say the issue goes deeper than patronage.
“Every judge I have ever known has been adamantly non-partisan, never donating [to parties] or attending political events,” said Liberal justice critic Laurie Blakeman, an MLA since 1997. “Still, they have to read between the lines of legislation to interpret and rule. If the PC government keeps writing bad legislation, then we have to trust in the courts and judges to rule in the best interests of Albertans, which may not be in line with conservative ideology. Or do [judges] lean more toward that conservative interpretation, and possibly not the best interests of Albertans?”
Blakeman points to the anti-labour Bill 46 as an example. She and other critics say the legislation was highly politicized, removing the long-standing right of civil service unions to go to binding arbitration to achieve a contract settlement. The law was recently challenged in Alberta courts. But most legislation does not undergo such scrutiny from provincial courts.
Meanwhile, it did not escape media attention that the Crown prosecutor named to Edmonton’s Criminal Court bench this January—Steven Bilodeau—had months previously pushed for the toughest sentence in Canada in 50 years.
The Edmonton-Centre MLA adds that Albertans face a “double whammy,” with judges being appointed by both the right-wing Redford and Harper governments. “I do worry about future decisions,” she says. “Would the Vriend decision [on gay rights] make it through the provincial courts, federal courts and up to the Supreme Court the same way in 2014 that it did in the late 1990s? I doubt it.”
Aside from patronage and the potential for politically influenced judgments, some critics are concerned that most judges being appointed in Alberta are white males. And Shannon Prithipaul, president of the Criminal Trial Lawyers Association, has pointed out that very few Provincial Court judges are appointed from the ranks of criminal defence lawyers, whose job is to fight the government.
Retired Judge Allard would like to see Alberta adopt features of the selection process from the UK, where an independent panel appoints judges. Twelve of the 15 members of the Judicial Appointments Committee for England and Wales are selected through an open competition rather than chosen by government. The committee doesn’t just screen candidates for the bench but presents the government with a single name. It essentially chooses the judge.
Alberta’s PCNC chair sees no need for such a change. “I think we have a range of political views on the committee as far as the appointees are concerned,” Niven says. “So I don’t think having an independent committee to appoint the (nominating) committee would move things along all that much.” He says it would be another layer of bureaucracy.
Both the Canadian Bar Association and the Law Society declined to be interviewed for this story, deferring comment on the judicial appointment process to the PCNC chair. “The Canadian Bar Association–Alberta is satisfied that the Provincial Court nominating process works to ensure appointments to Alberta’s Provincial Court are based on merit,” president Marian De Souza, also a PCNC member, stated in an email. “[Our] position is that the nominating process does not need to be changed.”
Wildrose justice critic Shayne Saskiw would like to see the PCNC scrapped. “If there’s even a perception of undue political influence, we have to eliminate it completely,” he said. “In other jurisdictions, the process is completely independent of the minister of justice. Here in Alberta, his reach is all over that committee.”
Retired Chief Judge Wachowich is also convinced Niven’s committee is a big part of the problem. “Why the hell do they need a second committee?” he asks. “The first level is thorough. It is objective… Once you get to the second level of scrutiny, it undermines everything that’s decided at the first level.”
But even the Alberta Judicial Council has ties to the PCs. According to a CBC report last year, lay member Joan Hertz has served as president of the Edmonton-McClung PC constituency association and as secretary for the Alberta PC party. The other member appointed by the justice minister, Sandra Durrant, is married to Hunter Wight, executive director of Redford’s Calgary office.
University of Lethbridge professor Peter McCormick recommends a single, permanent, independent nominating committee with a sizable component of lay members to produce a ranked shortlist of judicial candidates—rather than a pool of names—to minimize the discretionary power of the minister. The committee should also post its criteria for appointments, cultivate a visible public presence and report publicly every year on its activities, he says. He also recommends that the committee advertise judicial vacancies and operate an independent public website.
Alberta Premier Dave Hancock says he proposed merging the AJC with the PCNC when he was justice minister in 2003, but that the idea was opposed by the courts and some lawyer groups, so it never proceeded beyond the discussion stage. “We looked at a number of different ways to streamline the court appointment process to have both the impact of the Judicial Council, which does the preliminary screening, and the Provincial Court Nominating Committee, which brings the community flavour into it,” Hancock said. “One of the concerns at the time was it was a dual process.”
But Hancock rejects the contention that the appointments of PC supporters to the PCNC make it susceptible to accusations of political bias. “The bottom line is we have one of the best processes in the country,” he says. “It’s not political. It’s a good, sound, citizens-based process.”
Hancock said when he served as justice minister he would meet with the chief judge to discuss the type of skills the bench required at the time and then select the candidate that best met the criteria. “That’s something the chief judge and I did together,” he says. “I didn’t go into the list and say ‘Who do I know that has door-knocked with me?’ That’s just ludicrous.”
If the Alberta government wants to satisfy its critics in the legal profession as well as regular citizens skeptical about the independence of the judicial appointment process, it has a long way to go. It might try to catch up to provinces such as Ontario, which provides significant information on its courts website, including biographies of members of the selection committee and frequently asked questions, and BC, which posts its Judicial Council’s annual report. Alberta has a four-line entry on the Department of Justice website and no information about the composition of its nominating committee or the criteria or procedure for appointments.
The lack of information is ironic, U of L’s McCormick says, since the nominating committee was ostensibly created to make Alberta’s appointment procedure more open and transparent. He suggests the process is “as open as a bank vault, as clear as an oil spill.” He allows that some other provinces are no better than Alberta at providing information about how their judges are appointed. “If the judicial appointment process for provincial court judges in Canada is coming out of the shadows in which it has historically been hidden, it is clear it has not come out very far,” he says.
Alberta’s chief judge of the Provincial Court, Terrence J. Matchett, appointed to the post a year ago, believes the system must be open-minded to changes. “I think it’s important the public know how the committee operates, what the criteria for appointments are, who the membership of the committee is,” he says, adding that the PCNC should also consider producing annual reports.
Matchett stresses it is “absolutely essential” to have quality judges on the bench. “I certainly believe it’s important that we have a rigorous and open and fair process for selecting judges to the court,” he says. “This committee, like every other public committee, has to be accountable and transparent, and I am concerned if lawyers are of the view that this is not a committee that takes its work seriously or that fairly assesses candidates.”
“In other jurisdictions the process is independent of the minister of justice. In Alberta, his reach is all over the nominating committee.” -Wildrose justice critic Shayne Sasiw
While critics say having two committees isn’t the most efficient way to select judges, Matchett, who sits on both committees, disagrees. He said committee members ask tough questions during the candidate interviews and do their homework when it comes to checking references. “I just find the dynamic of having that many non-legally trained people in the second interview different than the first committee… they’re a lot more focused on personal suitability in the second committee,” he says. “The first committee deals with whether or not we have a candidate who has excelled in their area of practice and whether this is someone who has the legal qualifications to do the job.”
“I welcome applications from all parts of the bar,” adds Matchett, “because I think ideally you want to have all of that represented in your court, the same way you want representation culturally or by gender.” He adds, “Our court wants to move in that direction. As chief judge, I very much welcome a broader application base.”
Justice Minister Jonathan Denis maintains the judicial appointment process is working well and there are no plans to alter it. He claims that no one—not lawyers, judges, the Bar Association or the Law Society—has asked him for changes. “I think we have a process that achieves the goal of providing cabinet with the most qualified applicants to the bench,” he says.
But former chief judge Wachowich isn’t optimistic the province would even acknowledge, let alone consider, reforms that could curtail the governing party’s ability to decide who gets appointed to the bench. “I really can’t see that happening,” he says. “They want that power. It’s part of politics. Politics is power. They want to be able to exercise that.”
Darcy Henton is an award-winning Edmonton-based political affairs writer who covers the Legislature for the Calgary Herald.