Liberal insider warned of 'potential for a scandal' in judicial appointment process

A Liberal official complained to his superiors last year about the Prime Minister's Office playing an overbearing role in the judicial appointment process, warning that partisan considerations have created the "potential for a scandal," according to emails obtained by Radio-Canada.

The internal warning came from François Landry, a political aide who worked directly on the judicial appointment process in the office of Justice Minister David Lametti at the time.

"Need to talk about what PMO requires us to do prior to a judicial appointment. It raises some concerns," Landry wrote to chief of staff Rachel Doran on February 18, 2019.

"I think we need to be more cautious considering what is happening. I want to protect the minister … and myself."

Concerns within the federal government about the PMO's role in the vetting process for candidates for judicial office — and its insistence on consultations with cabinet ministers, Liberal MPs, plugged-in lawyers and Liberal officials before appointments are made — go beyond Landry's stated qualms, according to sources and other internal government emails.

On judicial nominations in Alberta, for example, the PMO asked for the input of Robbie Schuett, a Calgary lawyer and president of the party's Alberta branch, according to documents obtained by Radio-Canada.

The Liberal Research Bureau also participates in the background checks on judicial candidates, according to federal sources and an internal government email. The LRB is a taxpayer-funded entity that offers research and communications services to the Liberal caucus.

In the case of judicial appointments, a source said, the LRB goes through public databases like Google News and Infomart to see what sort of information on a specific candidate is in the public domain.

The PMO also tracks candidates' contributions to political parties and candidates and regularly obtains lists of lawyers who are eligible for judicial appointments, allowing Prime Minister Justin Trudeau's inner circle to keep a close eye on the process, sources said.

As previously reported by The Globe and Mail, internal government emails show that the PMO has used the Liberal Party of Canada's private database — called Liberalist — in the vetting process for would-be judges, allowing the government to learn the full extent of a candidate's contributions to the party. The database states whether and when someone was a member of the Liberal Party and whether they participated in electoral campaigns or leadership races.

Wilson-Raybould says she tried to 'insulate the process'

In an interview with Radio-Canada, former justice minister Jody Wilson-Raybould confirmed the existence of political pressure in the selection of new judges. She said she is proud of the more than 200 judicial appointments she oversaw but acknowledged she felt a need to "insulate that process" from partisan considerations.

"During my time as minister, there were people in the centre, the Prime Minister's Office, other ministers, Liberal partisans, who would take great interest in the appointments process," she said.

"There is a sense that some people still carry that appointments, whether they be to the bench or otherwise, that you can curry favour if you are a partisan or if you have done something to benefit the party."

Asked to respond to Wilson-Raybould's comments, Lametti insisted that there are "no partisan considerations" involved in his judicial appointments.

"During my tenure as Minister of Justice and Attorney General of Canada, I have not experienced pressure to appoint a specific candidate to the bench," Lametti told Radio-Canada in a written statement. "The decision on which candidate to recommend to cabinet is mine alone, and is based on needs of the court, the quality of the candidates and the diversity of the bench."

Through a spokesperson, Lametti's office defended the judicial appointment process, saying new judges are named based on each court's specific needs and in service of government objectives such as increasing diversity on the bench.

"All judicial appointments are made on the basis of merit," said press secretary Rachel Rappaport. "Partisan considerations do not play a role in determining the candidate that minister Lametti will put forward to cabinet."

Political donations don't tilt the scales: Lametti's office

Lametti's office added that the government only compiles information on a candidate's past professional and partisan activities to ensure the minister is ready to answer questions "as he prepares for the cabinet discussion, as well as to respond to any potential questions from members of the media, Parliamentarians, or Canadians."

"Political donations neither advantage nor exclude a candidate from being appointed to the bench," Rappaport said. "We are proud of the high quality of jurists that have been produced under our reformed system, and the positive feedback that we continue to receive from the broader legal community across Canada."

Landry said in his Feb. 18 email that he had consulted three colleagues on the judicial appointments process in place. While one was "not very concerned," he said, two others told him they "both think there is potential for a scandal."

Landry, who worked previously as a Liberal aide in Quebec City, warned Lametti's chief of staff that the process in Ottawa reminded him of the political meddling that marred judicial nominations in Quebec when the Charest government was in power. In 2010, then-premier Jean Charest appointed former Supreme Court justice Michel Bastarache to lead a commission of inquiry into the judicial appointment process.

"What we are doing is similar to what led to the Commission d'enquête sur le processus de nomination des juges, back in 2010 in Quebec, also known as Commission Bastarache," Landry added.

Landry left his job in the justice minister's office last year. Sources tell Radio-Canada it was not an amicable split.

In response to questions, Landry issued a statement saying he would only answer further questions before a parliamentary committee that offers witnesses protection from lawsuits and is able to make recommendations to improve the nomination system. (The testimony provided by witnesses before parliamentary committees cannot be used in other legal proceedings.)

"I denounced practices that raised serious ethical issues. I would have much to say on the topic and feel it would be in the public interest," he said.

In 2016, Trudeau's government reformed the judicial appointment process — especially in relation to the work of the Judicial Advisory Committees (JACs) that decide whether applicants are recommended, highly recommended or not recommended at all for a nomination. Among other things, the government removed the requirement that a representative of the policing community sit on a JAC, which was introduced by the previous Conservative government.

"The measures we are introducing today will make the judicial appointments process more open, transparent and accountable for future appointments, resulting in a judiciary that is more reflective of Canada's diversity," Wilson-Raybould said at the time.

System lacks transparency, say critics

But many experts argue the system remains opaque — particularly the process used to determine which candidates, among the hundreds of lawyers recommended by JACs, actually receive judicial appointments.

While similar committees in Ontario, Quebec and the United Kingdom draw up short lists of candidates for each vacancy, the federal government gives itself much more leeway.

"Under the current framework, there are no formal constraints placed on the manner in which the minister of justice decides which candidates to recommend for appointment, nor on the degree to which he involves cabinet colleagues in scrutinizing the candidate," said Nathalie Drouin, deputy minister of justice, in a briefing note shared with Lametti's office in 2019.

Patrick Taillon, a law professor at Laval University in Quebec City, said the government has to act in a way that preserves the trust Canadians have in their judiciary.

"The problem is the profoundly political characteristic of the final phase of the process," he told Radio-Canada.

A 'grave ethical problem'

Taillon said the use of the Liberalist database could blur the line between politics and the judiciary.

"It is a grave ethical problem to factor in purely partisan considerations in the appointment process," he said.

Geneviève Cartier, a professor of law at Sherbrooke University, collaborated with Michel Bastarache's commission a decade ago. She said that new rules could provide greater transparency by, for example, compelling the minister of justice to publicly state why a particular candidate was chosen.

"The federal government gives itself much discretion in the current process ... and might need to be constrained, if only to increase the public's trust in the appointment process," she said.

Regarding the presence of partisan considerations in the vetting process, she said there should be clear rules against "rewarding the friends of a party, or favouring candidates who donated to the party, or punishing candidates who support the opposition."

In his memoirs, Bastarache said that the Quebec government made substantial reforms to its appointment process in response to his public inquiry's final report, which was released in 2011. He said the time is ripe for Ottawa to follow suit.

"It is up to politicians to appoint judges. But it has to be done as part of a formal process with institutional barriers against partisan appointments," Bastarache wrote. "I think all systems could be improved, especially the appointment process at the federal level."

Wilson-Raybould said the existing system can work well but its outcomes also depend on the individuals in charge.

"We need to be constantly vigilant. It is important to ensure that any process, including the judicial process, is open for review and is open to be improved," she said.