The process for appointing provincial court judges in Alberta should be reformed because it favours candidates with ties to the Progressive Conservative party, lawyers say.
"You can find judicial appointments of people who aren’t specially qualified, and not more so than anyone else, who obviously received an appointment because of their political connections," Criminal Trial Lawyers’ Association president D’Arcy DePoe said, adding that the skewed process "does breed cynicism."
'What is at risk is simply this: you’re not always going to get the best person'—Allan Wachowich, former chief justice
Alberta lawyers and judges who wish to preside over the provincial court must first submit their applications to the Alberta Judicial Council.
The six-member panel consists of the Chief Justice of Alberta, the Chief Justice of the Court of Queen’s Bench, the Chief Judge of the Provincial Court of Alberta, the president of the Law Society of Alberta, and two people appointed by the minister of justice.
The council interviews the applicants, then forwards a list of recommended individuals to a second panel, the Provincial Court Nominating Committee.
It is before this committee, Depoe said, that applicants’ political affiliations can —and have — overshadowed their credentials.
"The list that [the committee members] submit to the minister, of qualified people, inevitably is going to be influenced by the political leanings of the people on the committee," he said.
Justice Minister Jonathan Denis was not available for comment, but his press secretary, Josh Stewart, said provincial court judges are chosen based on merit.
"Being a part of a political party in Alberta is not a crime," he added, "and should not rule anyone out from public service nor affect the selection process."
Recent appointees include PC riding association president
But a CBC News investigation found that some recent judicial appointments and the nominating committee itself had close political ties to the provincial Conservative party.
Two of the last three new judges selected for the provincial court have direct links to the Tories.
Justice Minister Jonathan Denis appointed Edmonton lawyer Ken Holmstrom on June 18th. Holmstrom is president of the Edmonton-Rutherford PC riding association, and has served as either its president or chief financial officer for the past three years.
Nicholas D’Souza, appointed March 13th, was one of 18 people who donated to Denis’ 2012 election campaign.
DePoe said generally those who get appointed are well qualified for their positions. But he said he knows of other cases where a candidate’s politics influenced the committee’s decision.
"There are other equally qualified people that simply don’t have a chance," Depoe said.
Selection committee contains Redford campaign team member
The Provincial Court Nominating Committee is chaired by Calgary lawyer Michael Niven, a frequent donor to the provincial Conservative party.
He was also Premier Alison Redford’s official agent during her last election campaign, and is a member of Redford’s Calgary-Elbow riding association.
Another nominating committee member, Robert Dunseith, was president of the provincial Conservative party from 1999 to 2002, as well as the official agent for PC MLA Steve Young during his campaign. Dunseith currently serves as the "director at large" of the Edmonton-Riverview PC riding association.
Three of the committee’s 11 members are appointed by virtue of their positions: the Chief Judge of the Provincial Court, the president of the Law Society of Alberta, and the president of the Canadian Bar Association’s Alberta branch.
The eight remaining individuals, which include Niven and Dunseith, are hand-picked by the justice minister, the same person to whom the committee makes its final recommendations. Two committee positions are currently vacant.
Dave Hancock created the Provincial Court Nominating Committee in 1999 when he was justice minister.
Hancock told the legislature in February 2003 that, "the authority of the minister to appoint the chair and seven other members ensures that the public interest in the judicial selection process is served."
DePoe disagrees with that assessment.
"If they are going to have a committee that recommends judicial appointments, then the committee should have some independence," he said. "It should be independent of the political process, and it should be drawn from a wide spectrum of the community.
"And there are plenty of qualified, responsible people out there who they could select, who are not Tory riding association presidents."
The two appointed members of the Alberta Judicial Council, Joan Hertz and Sandra Durrant, also have connections to the governing party. Hertz was president of the Edmonton-McClung PC riding association, and secretary for the provincial Conservative party. Durrant is married to Hunter Wight, the executive director of Redford’s Calgary office.
'You’re not always going to get the best person'
"What is at risk is simply this: you’re not always going to get the best person in the position to serve on a provincial court," said Allan Wachowich, former chief justice of the Court of Queen’s Bench.
During his time as chief justice, Wachowich sat on the Alberta Judicial Council. He said he and his colleagues "never took into consideration what you would call the political background of [the]
individuals" they vetted for judicial appointments, but he said the same does not hold true for the Provincial Court Nominating Committee.
"I have asked people to apply in certain cases because you can see that the person had the qualifications, had the experience and everything else," he said. "And they say, ‘Why should I apply, and then be insulted by being rejected because of no political connections?’ And they were very blunt about this."
Hancock attempted to merge the Alberta Judicial Council and Provincial Court Nominating Committee in late 2003, but abandoned the effort due to pushback from the Canadian Bar Association and others.
"There seems to be some concern about the so-called independence of the committee," he told the legislature that November. Specifically, members of the legal community were troubled by the fact that the majority of members on the Provincial Court Nominating Committee are appointed by the justice minister.
Hancock did not address these concerns though and instead opted for the status quo.
"Rather than engage in any concern of that nature, I have agreed to withdraw that amendment and to continue with the two-committee process rather than a one-committee process," he said in 2003.
Wachowich says he believes the Provincial Court Nominating Committee is not only unnecessary, but a political barrier for otherwise qualified candidates who do not support the Conservative party.
"Their chances became minimal after the second committee was appointed," he said.
Critics call for reform of appointment process
But Wachowich says a culture of patronage prevents many lawyers and judges from speaking out on the issue.
"You don’t dare stand up and yell too loudly about these things because you might be deprived of some other things that you may wish that come from the minister of justice," he said.
DePoe says the government has created a skewed appointment structure — and is ultimately responsible for changing it.
"Unfortunately, the correction is going to have to come from the government itself — to realize that the process needs to be opened up and they need to draw on a broader spectrum of the community, both in the nominating committee and in the actual appointments," he said.
"Or it might happen with a change of government."