Canadian Lawyer

30 O C T O B E R 2 0 1 6 w w w . C A N A D I A N L a w y e r m a g . c o m T he process for a lawyer in Ontario seeking an appointment to the provincial court is not that much different from a traditional job application in another field. When specific spots on the bench become available, the opening is publicly advertised. Some of the applicants are selected to be interviewed by an advisory committee and then a very short list is forwarded to the attor- ney general to decide who will be appointed to the position. The framework was introduced in Ontario more than 25 years ago and it continues to be modified slightly over time. Many other provinces have a similar process for selecting judges to provincial courts, although Ontario is unique in that a majority of the 13 people on its Judicial Appoint- ments Advisory Committee are lay members. As well, instead of a list of recommended candidates submitted to government, provincial court positions are selected for an actual opening in a community once it becomes available. The process has generally received good reviews from the legal community in Ontario and is considered more transparent and less susceptible to allegations of political patronage. "It is a good model," says Lai-King Hum, national presi- dent of the Federation of Asian Canadian Lawyers. That view is echoed by Gina Papageorgiou, a Toronto lawyer and bencher at the Law Society of Upper Canada. Even the information provided to applicants on the Ontario committee's web site is more helpful than what is public for individuals seeking federally appointed spots on the bench, she suggests. "I understand it. There is a list of criteria and I know what they are," says Papageorgiou. PROVINCIAL COURTS: A BETTER MODEL? The changes to the Supreme Court appointment process received widespread media attention and generated much dis- cussion among legal organizations. What has escaped media scrutiny is the appoint- ment process for judges to provincial Courts of Appeal, Superior Courts and Federal Courts — of which there are cur- rently more than 1,100 members and more than 40 vacancies. The federal government is still prom- ising to reform this process, although it has said little publicly. A spokesperson for the Justice Department told Canadian Lawyer that it is consulting with stake- holders and once it is ready to announce any changes they will be made public. While the specifics of any new process remain unclear, where there does appear to be agreement in the legal community is that what is in place now needs to be improved and made more transparent in a substantive way. "The whole process needs to be over- hauled," says Ranjan Agarwal, president of the South Asian Bar Association of Toronto and a partner at Bennett Jones LLP. "It is clandestine and in the hands of a select few," he suggests. A framework for federally appointed judges that is more open is also good for improving public confidence in the system, says Craig Ferris, a partner at Lawson Lundell LLP in Vancouver and a bencher of the Law Society of B.C. "There is more confidence in the system if people have a better sense of how judges are selected," says Ferris. Some of the criticisms of the exist- ing process include a lack of openness, patronage appointments regardless of which party is in power and that it is a framework that does not recognize the increasing diversity of the legal commu- nity in Canada and the overall popula- tion. More than 25 years after law schools in Canada began to be equal in terms of the gender of their students, females make up 36 per cent of all federally appointed judges. There is very little data about the diversity of those on the bench. Of the 79 judges who are currently sitting on the B.C., Ontario and Quebec appeal courts, two are from a visible minor- ity background. The last member of the B.C. Court of Appeal to be from a visible minority was Wally Oppal, who stepped down in 2005 to enter politics, later becoming the province's attorney general. Increasing diversity within the judi- ciary requires more than just statements from legal organizations that there is a need for a bench that better reflects the makeup of its community, says Jennifer Chow, a Vancouver lawyer and past presi- dent of the provincial branch of the Cana- dian Bar Association. "We need concrete steps. We need to see the application of those motherhood principles," she says. To achieve these goals requires a better process to select federally appointed judges, says Chow, and measures to broaden the pool of applicants. Under the existing system, a lawyer seeking a Superior Court-level position, for example, will complete a detailed applica- tion form with references, and at some point, a judicial advisory committee in that province or region will assess the candi- date. The committees include a nominee of the province's chief justice, its law society, the CBA and the provincial government. The other members are a nominee from law enforcement and three people selected by the federal minister of justice. The committee will decide if an appli- cant is "recommended" or "unable to rec- ommend." Assessments are valid for two years and forwarded to the federal justice minister. The candidate is only told that they have been assessed, not what the com- mittee concluded. Unlike the process in many provinces for appointments to the provincial court [see provincial court process sidebar below], there is no short list drawn up for a specific judicial opening nor are there interviews with candidates before a final decision is made. "Professional compe- tence and overall merit" are the primary qualifications for an appointment, states the web site of the Judicial Affairs commis- sioner, without providing further details. The general statement about qualifica-

• Cover