Changes to the Appointments Process for Federal Judges
Frequently Asked Questions
- 1. Why is the Government making changes to the way that federal judges are appointed?
The Government believes that Canadians' confidence in our judiciary will be reinforced by a transparent and accountable selection process that identifies outstanding judicial candidates who reflect Canada's diversity and a gender balance.
The government announced reforms to the federal judicial appointment process after reviewing the pre-existing application process and consulting with key stakeholders, such as the Canadian Judicial Council and the Canadian Superior Court Judges Association. The reforms were based on measures that will strengthen the selection process and the role of Judicial Advisory Committees, as well as promote the identification of a diverse pool of jurists of the highest calibre.
- 2. What changes will the Government be making to the appointment process?
The changes to the selection process are aimed at reinforcing public confidence through openness, increased transparency and accountability, and by promoting diversity and gender balance on the bench. The independent Judicial Advisory Committees (JACs) will continue to play a fundamental role by assessing applicants against published assessment criteria.
The effectiveness and independence of JACs will be improved by restoring their size to seven members for all JACs with the exception of the Tax JAC, restoring voting rights to judicial members, and reintroducing the "highly recommended" category so as to allow JACs to highlight a subset of the most outstanding candidates.
On October 20, 2016, the Government started the process of reconstituting all JACs in order to make them more representative of the diversity of Canada. A public application process for the Public Representative positions was launched, and diversity and unconscious bias training was developed.
Diversity training for JAC members will be provided by the Chief Justice of Canada, the Right Honourable Beverley McLachlin by means of a videotaped lecture. Her videotaped lecture will assist JAC members to assess the qualities that make a good judge, understand the challenges of judging in a multicultural society and comprehend the importance of diversity on the bench.
Two interactive tools on unconscious bias training will also be provided to JAC members. "Find the Right Fit Using an Objective Eye," an interactive training tool on unconscious bias, will be provided to JAC members through the Canada School of Public Service. "Project Implicit", developed by Harvard University and used by the National Judicial Institute, is another interactive unconscious bias training tool that will be made available to JAC members. It is an anonymous set of multi-word and image association tests which provide the test-taker with an objective reflection of their own unconscious biases. Together, these measures are intended to solidify public confidence in the judicial system.
Transparency will be improved by requiring the Office of the Commissioner for Federal Judicial Affairs (CFJA) to collect and publish statistics and demographic information on those who apply for judicial office and those who are appointed. In order to promote diversity on the bench, JACs will be instructed to take into account, as one of their many considerations, the Government's goal to have a judiciary that reflects the diversity of Canadian society.
In addition, sitting judges on provincial and territorial courts will be required to apply using the same Questionnaire and be assessed by JACs in the same way as lawyer applicants.
The appointments process will also provide a more accurate picture of the official language capacity of candidates. Applicants will be asked to identify their capacity to communicate in both official languages, and may be assessed. This information will be available to the Minister of Justice when she discusses a court's needs with the respective Chief Justice and makes recommendations for appointments to the bench.
More information on the application and assessment process can be found on the CFJA Website.
- 3. Who are the members of the Judicial Advisory Committees?
The independent Judicial Advisory Committees (JACs) play a fundamental role in the selection process by assessing applicants for judicial office against published assessment criteria. There is at least one JAC in each province and territory.
Under the Government's new approach, each JAC will consist of seven members representing the bench, the bar and the general public, the majority (four) of whom are nominated by entities in the province or territory in question:
- a nominee of the provincial or territorial law society;
- a nominee of the provincial or territorial branch of the Canadian Bar Association;
- a judge nominated by the Chief Justice of the province or by the senior judge of the territory;
- a nominee of the provincial Attorney General or territorial Minister of Justice; and
- three nominees of the Government representing the general public.
As of Friday, January 20, 2017, women make up 69 per cent of the JAC nominees named today. There is also significant representation from minority communities.
There is also a JAC for the Tax Court of Canada, which consists of five members. It will be announced in the next round of JAC appointments.
- 4. What will be the terms of JAC members? Will their terms be staggered, as some have recommended?
The terms of JAC members in British Columbia, Quebec, and Ontario will end on January 1, 2019. The terms of JAC members in Alberta, Manitoba, the Northwest Territories, Nunavut, and the Yukon will end of March 1, 2019. The terms of JAC members in New Brunswick, Newfoundland and Labrador, Nova Scotia, Prince Edward Island, and the Tax JAC will end on June 1, 2019.
- Can anyone apply to be a JAC member? How will successful candidates be selected? Are they paid for their services?
Each JAC consists of seven members, four of whom are nominated by entities in the province or territory in question. Three of the members are representatives of the general public nominated by the Government. These members, who need not be lawyers or legally trained, will now be selected through an open and transparent application process. This process aims to ensure that the general public is represented by outstanding individuals that reflect the diversity of Canadians, and are engaged in their community.
JAC members are volunteers who are not paid for their services. However, all reasonable expenses incurred to support their participation in the process are reimbursed.
- 6. How will the new process prioritize diversity on the superior courts?
The Government is committed to a selection process that ensures that jurists of the highest calibre are appointed to its superior and federal courts. The Government is also committed to the goal of a judiciary that reflects the diversity of Canadian society.
The Government believes Canadians' confidence in our courts will be enhanced if the judiciary more closely mirrors the reality and experience of those who appear before it. This includes addressing the relatively low representation of women, racialized groups, Indigenous peoples and persons of other diverse backgrounds on the bench.
To this end, the Government will instruct JACs to conduct the assessment of candidates taking into account as one of their considerations the Government's goal to have a judiciary that reflects the diversity of Canadian society. JAC members will be assisted in this task through training on diversity, unconscious bias, and the assessment of merit.
Further, the CFJA will collect and publish statistics and demographic information on judicial applicants and appointees, based on voluntary disclosure by candidates with regard to sex, racial identity, Indigenous identity, sexual orientation, gender identity and disability. This will increase transparency and allow Canadians to hold the Government to account for its commitment to enhance diversity on the bench.
- 7. When will these changes to the selection process be made?
The Government will immediately move to implement the new measures. The JACs appointed today will begin assessing applications as soon as possible. Moving forward, all judicial appointments made by the Government of Canada will be completed under the reformed appointments process.
- 8. Whom did the Government consult in developing the changes to the selection process?
The Government reached out to several stakeholders to solicit their thoughts and comments on the superior court judicial appointments process. This included key stakeholders in the judicial and legal communities, such as the Canadian Judicial Council, the Canadian Superior Court Judges Association, the Canadian Association of Provincial Court Judges and the Commissioner of Official Languages.
The new changes to the selection process resonate with what the Government has heard from several key stakeholders. The Government is open to hearing from Canadians about further ways to improve the process.
- 9. The Commissioner of Official Languages has raised concerns regarding the bilingual capacity of the superior courts. How do the Government's changes address this important issue?
The Government is committed to ensuring that Canadians of both official language communities are able to have appropriate access to justice in their first official language and has carefully reviewed the recommendations of the Commissioner of Official Languages.
Applicants must now complete a more detailed self-identification process on their questionnaire to assess their level of bilingual capacity. In addition, the CFJA will develop a means of objectively assessing their second language capacity, if necessary.
Detailed consultations with Chief Justices about the specific needs of their court will also continue to provide important information to the Minister as to the bilingual capacity required on their respective courts.
In order to advance transparency and accountability with respect to the bilingual capacity of superior courts, the CFJA will collect and publish demographic data of applicants and those appointed, including information on official language capacity.
- 10. Why do current applicants have to reapply?
The Government acknowledges the significant amount of time and effort applicants have devoted to completing their applications. However, all applicants must submit new Questionnaires, along with necessary supporting documents, to ensure that the reconstituted JACs are assessing all candidates based on the same information fields provided by applicants. All pools of judicial nominees created under the older judicial appointment process are no longer valid. Only judicial applicants who have applied and have been recommended for appointment under the new process will be considered by the Minister.
The new Questionnaire elicits more detailed information from candidates regarding their background, experience, and bilingual capacity. This will allow JACs to provide additional information to the Minister to inform her decision to recommend candidates for judicial appointment. This will ensure fairness.
- 11. How do people apply?
Qualified individuals interested in applying for federal judicial appointment are invited to apply using the Questionnaire and process outlined on the website of the Office of the Commissioner for Federal Judicial Affairs. Applications for judicial appointment are considered by the JACs in the order in which they are received by the Commissioner for Federal Judicial Affairs.
Individuals who wish to represent the general public on the Judicial Advisory Committee for their region can apply through the online process.
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