The new process developed in 2016 to increase transparency in judicial appointments and diversity on the bench brought with it a brand new questionnaire that was more than double the length of the previous one.
The new application form offers more guidance for completing the optional self-identification portion, and offers more information on filling out the employment history section. It also requires more – and more varied – references, has a written skills assessment section in which the applicant has to provide five written judgments (along with a synopsis of each and the reasons why those five were chosen), and five 750-1,000-word essays “on questions related to the role of the judiciary in Canada’s legal system.”
Holy writer’s cramp, Batman!
In a letter to the Justice Minister, the CBA’s Judicial Issues Subcommittee notes that it has received comments that the application was “overwhelming” and “could deter potential candidates from applying.” The Subcommittee says it’s hard to assess the impact of the new application package, given the lack of hard historical data about applicants, but it does acknowledge that the requirements of the application may be commensurate with the position sought.
“The CBA Subcommittee agrees that the questionnaire is lengthy, but appreciates that candidates for senior positions in any setting are expected to put significant effort into the application process,” it says.
That said, the Subcommittee also has some suggestions for improving the questionnaire.
Applicants are asked questions that in any normal employment process would be prohibited – questions about age, place of birth, gender, disability and pardoned offences. While judicial office is not “employment” per se, the Subcommittee believes “there is merit to applying a human rights values and principles perspective to the application package” to ensure that only the necessary information is requested. For example, the questionnaire asks about serious mental or physical health problems going back 10 years, but does not say why a 10-year medical history is necessary.
There is also no guidance for candidates with responsibilities to address the issue of accommodation. And where candidates are asked to list community and civic activities, some feel they’re being asked to disclose political affiliations, which the Guidelines for Judicial Advisory Committee members specifically states must not be discussed. Further guidance here would be helpful, the Subcommittee says.
Overall, the Subcommittee advises Justice Canada to conduct “quantitative and qualitative research involving actual and potential candidates, individuals responsible for the assessment of candidates, and the public” in order to provide statistics that will show whether the new process is achieving its ends.
“Increased transparency about the current process through published statistics, published portions of applications by successful candidates, and outreach to the legal profession will contribute to improved understanding of the potential pathways to the judiciary and the requirements of the application process.”