Guy Smith is the judicial affairs advisor to federal Justice Minister Rob Nicholson. Click here to see full sized version.

The Conservatives will have appointed one-third of the country’s federal judges by the time they celebrate their fourth anniversary in office this month.

However, despite the Harper government’s success in appointing hundreds of new judges, including many chief and associate chief justices, at press time more than half of the country’s 17 judicial vetting committees were defunct because the government had yet to appoint new members, The Lawyers Weekly has learned.

According to Guy Smith, judicial affairs advisor to federal Justice Minister Rob Nicholson, the Harper minority government has appointed or elevated 311 federal judges since it came to power Jan. 23, 2006.

This represents 35 percent of the nation’s 887 full-time judges, or 29 percent of all the country’s 1,089 judges (if one includes 202 part-time supernumeraries).

“The sense that I am getting is that the judiciary and the Bar have been in large [part] happy with the appointments to date,” says Smith, who became Nicholson’s judicial affairs advisor last March. (Nicholson appointed his previous advisor on judicial appointments, David Near, to the Federal Court in June.)

Smith, who had been a corporate lawyer with Ottawa’s Perley-Robertson, had to hit the ground running. In 2009 alone the Conservatives made 116 judicial appointments—an exceptionally large number (there are usually  between 60 and 70 appointments annually, according to the Office of the Commissioner for Federal Judicial Affairs).

And with retirements apt to balloon in the near future as boomer judges begin to doff their robes, the Conservatives could remake the federal judiciary if they remain in office for just a few more years.

However, there is a temporary stumbling block. Ten of the 17 judicial vetting committees across the country are inoperative because their mandates expired Oct. 31, 2009.

Consequently the business of these Judicial Advisory Committees (JACs) is at a standstill, with no applications for the Bench being vetted because the government has not yet put all the new members in place.

Defunct are the JACs in Quebec, Ontario (Toronto, and east and north), New Brunswick, Nova Scotia, Newfoundland, Prince Edward Island, Northwest Territories and Yukon.

This repeats a previous hiatus which arose Oct. 31, 2008 with the expiry of the mandates for the remaining JACs — in British Columbia, Alberta, Saskatchewan, Manitoba, Nunavut, and south and western Ontario.  At that time applications for those Benches were not vetted for months, with then-B.C. Supreme Court Chief Justice Donald Brenner telling The Lawyers Weekly he had to cancel some trials because of the federal government’s delays in appointing judges.

Marc Giroux, Deputy Commissioner for Federal Judicial Affairs, told The Lawyers Weekly he can’t say exactly when the new JACs will be up and running.

“Many appointments have been made, but [the committees] are not to the point of being functional. As to when they will be, we expect them to be functional very shortly,” he said.

Giroux noted it takes time to pull together the eight-person JACs (whose members are mostly chosen and appointed by the federal government, albeit four members are picked from candidates proposed by the Bar, provinces and police).  He explained there is a need to balance committee membership taking into account such factors as geography, language, gender, etc. “It hasn’t been uncommon in the past for there to be a break between the end of the mandate of one committee and the start of the next,” he said.

At press time, Smith was also unable to say when the new JACs will be constituted. But he said the impact is currently “negligible” since appointments are virtually up to date. (There are only 16 to 20 vacancies, an unusually low number).

Smith said he has had no complaints about delays in appointments from chief justices.

“Are you kidding me?” he remarked. “We have had nothing but compliments. The chief justices right across the country are very happy at this point with all the appointments we have made, and the speed with which we have filled the vacancies.”

The oldest vacancy at the moment—on the Federal Court of Appeal—dates back to Dec. 13, 2008. However Smith said priority was given to appointing a new chief justice to that court.

He declined to reveal how big the current national pool of approved judicial candidates is, but noted there are enough lawyers who have been vetted and “recommended” by the JACs to permit current vacancies to be filled.

He said there are 50 to 100 approved candidates for the two vacancies in both the Ontario and Quebec superior trial courts. There are also “two handfuls” of approved lawyers for the current Federal Court of Appeal vacancy, and about three dozen candidates for the current Federal Court vacancy, he said.

Prime Minister Stephen Harper has already had a major impact on the judiciary’s top echelons, despite leading a minority government. He has appointed two Supreme Court of Canada judges, as well as at least eight provincial chief, or associate chief, justices.

Applications for the Bench plunge - More lawyers rejected in 2008-2009

Only 460 lawyers applied for the federal Bench across Canada in 2008-2009 compared to 552 lawyers the year before — a decline of 17 percent.

The Judicial Advisory Committees (JACs) who vet lawyers for the Bench also rejected slightly more lawyers than usual as unsuitable for appointment in the year ending Oct. 31, 2009, according to data recently posted by the Office of the Commissioner for Federal Judicial Affairs.

Of the 463 lawyers vetted by the JACs in 2008-2009, 63 percent of applicants were rated “unable to recommend” for appointment, as compared to 59 percent rejected in 2007-2008, and 62 percent rejected in 2006-2007.

Viewed differently, last year 37 percent of applicants were “recommended” for the Bench, versus 41 percent and 38 percent respectively in 2008 and 2007. Applicants are not told whether they were recommended for the Bench or not.

The rejection rate for applications by the JACs is slightly higher than it was in the two previous years of the Liberal government. The eight-member JACs — appointed for three-years, with one possible renewal  —are chaired by a judge chosen by the chief justice of the jurisdiction (who may not vote). The JACs also comprise one nominee each of the provincial attorney general, law society, Canadian Bar Association, and “law enforcement community”, as well as three nominees of the federal Justice Minister.

Source: Department of Justice and Office of the Commissioner for Federal Judicial Affairs.