The Judicial Appointments Advisory Committee has developed two fundamental principles on the issue of confidentiality of committee information. These are:
(a) information about committee process is completely open to any person whomsoever,
(b) information about particular candidates is completely confidential unless released by candidates themselves.
2.0 Information on Process and Procedures
The Courts of Justice Act, by virtue of the amendments made in 1995, sets out very clearly that the Committee is to have 13 members of which the majority shall be lay persons, i.e., neither judges nor lawyers. The appointing bodies are required to recognize that the Committee should reflect the diversity of Ontario’s population and maintain linguistic duality, minority and gender balances.
The criteria for, and the manner of, selection of candidates are outlined in this Report.
Committee members individually speak to organizations and at legal conferences to publicize the process of appointments and believe that the process should be completely open and transparent.
3.0 Information on Persons who are applying for Appointment
By contrast to the preceding section, the Committee goes to great lengths to protect the privacy of the applicant. These measures include:
- keeping most sensitive information securely stored in the private homes of members, or with the Secretary;
- keeping applicants apart on interview days;
- destroying or shredding applications and notes as soon as possible after appointment of a candidate and after a candidate’s application has lapsed;
- advising references that their names will not be associated with their confidential comments;
- advising lawyers, judges, court officials and community contacts approached for discreet inquiries that their names will not be associated with their confidential comments;
- maintaining strict non-access to our files, including government personnel not associated with the Committee;
- holding all meetings and interviews in non-government locations.
4.0 Seeking Information
The Committee has had one major application from a citizen seeking information about a successful candidate. This application commenced in 1993 and formally concluded in 1997 at which time the Court of Appeal for Ontario, overruling the Divisional Court, held that private notes of the Committee members were not available to the public under the Freedom of Information and Protection of Privacy Act (FIPPA). Details of this litigation are to be found in our Annual Reports of 1996 and 1997.
5.0 What is to be done
The Committee has requested and continues to request the Government to amend the Freedom of Information and Protection of Privacy Act. The Committee wants to exempt the confidential candidate information from the operation of that Act. There is a precedent for this to be found in S.O. 1994 c.12 under which all records of the Ontario Judicial Council are only to be disclosed if that Council approves such disclosure.
Criteria For Appointment
It is important that eligible members of the Bar and the public be aware of the criteria used by the Committee in the selection of candidates for recommendation, and for convenience, those criteria are reiterated again in this Annual Report.
The current Summary Statement of the criteria is as follows:
1.0 Criteria for Evaluating Candidates
- A high level of professional achievement in the area(s) of legal work in which the candidate has been engaged. Experience in the field of law relevant to the jurisdiction of the Ontario Court of Justice on which the applicant wishes to serve is highly desirable but not essential.
- Involvement in professional activities that keeps one up to date with changes in the law and in the administration of justice.
- A demonstrated commitment to continuing legal education.
- An interest in or some aptitude for the administrative aspects of a judge’s role.
- Good writing and communications skills.
- A commitment to public service.
- Awareness of and an interest in knowing about the social problems that give rise to cases coming before the courts.
- Sensitivity to changes in social values relating to criminal and family matters.
- Interest in methods of dispute resolution alternatives to formal adjudication and interest in community resources available for participating in the disposition of cases.
- An ability to listen.
- Respect for the essential dignity of all persons regardless of their circumstances.
- Politeness and consideration for others.
- Moral courage and high ethics.
- An ability to make decisions on a timely basis.
- Punctuality and good regular work habits.
- A reputation for integrity and fairness.
- Compassion and empathy.
- An absence of pomposity and authoritarian tendencies.
- The Judiciary of the Ontario Court of Justice should be reasonably representative of the population it serves. The Committee is sensitive to the issue of under-representation in the judicial complement of women, visible, cultural, and racial minorities and persons with a disability. This requires overcoming. However, professional excellence is still the paramount criterion in assessing judicial candidates.
Judicial Appointment Process and Policies
Set out below is a step-by-step account of how the Committee arrives at its recommendations:
1.0 Overview of Process
1. Advertising the Vacancy
All vacancies are advertised in the Ontario Reports. Three weeks are allowed for applications to be received. In addition to advertising, the Committee contacts approximately 223 legal and non-legal associations with advance notice of the vacancy with a request that they bring the copy of the advertisement to the attention of their members. The advertisements are also posted on the Ontario Courts website at www.ontariocourts.ca/ocj/jaac.
2. Review of Applications by Members
Each member is provided with a list of all candidates who respond to an advertisement plus copies of all new and updated Judicial Candidate Information Forms. Members carefully review and assess the application forms and list candidates whom they feel should proceed to the second stage of reference checks and confidential inquiries. This list is submitted to the committee secretary who compiles a master list of candidates who have been selected by five or more members for the purpose of making reference checks and confidential inquiries. If any member of the Committee ascertains that a possible suitable applicant for a judicial appointment has not been selected for reference checks and confidential inquiries, the member may request that the applicant’s name be added to the list.
3. References and Confidential Inquiries
Each member is provided with a list of candidates who have been selected by five or more Committee members for the purposes of reference checks and confidential inquiries. These inquiries are made of the judiciary, court officials, lawyers, law associations, community and social service organizations, plus the named references provided by the candidate. Once the reference checks and confidential inquiries are completed, the Committee meets to discuss the information obtained and to select candidates to be interviewed. This selection meeting usually takes place three to four weeks after the members have received the list of candidates to be considered. Interviews normally take place approximately two weeks after the selection meeting.
The number of candidates to be interviewed for a judicial vacancy will normally be a maximum of 16 over a two-day period. Each interview will last approximately 30 minutes. The entire Committee sits for each interview but for questioning purposes, the Committee members take alternate interview turns. Following each interview, the Committee discusses the merits of the candidate interviewed. After the last interview for that particular vacancy, the Committee discusses the merits of the candidates interviewed, plus the merits of the candidates interviewed on a prior occasion within the year and who have applied to be considered for the current vacancy.
5. Recommendations to the Attorney General
The list of recommended candidates is provided to the Attorney General only after the clearances requested from the Law Society, LawPRO and CPIC checks have been received. These clearances are usually received approximately three weeks after the interviews have taken place.
A short ranked list, together with only the application form submitted by each ranked candidate, is then delivered to the Attorney General.
It is at this point that the Committee’s work is complete. A candidate is not notified whether or not his or her name has been put forward in the short ranked list to the Attorney General as this recommendation is personal and confidential for the Attorney General.
6. Unexpected Vacancies
It should also be noted that the Committee has established a procedure to avoid delays in filling vacancies that occur unexpectedly, such as from sudden resignation, illness or death. In such cases, when so requested by the Attorney General, it may recommend, without advertising the vacancy, candidates who have previously applied for the area of the judicial vacancy and who have been interviewed. This procedure will only apply to areas where there has been an advertised competition within a twelve-month period. However, the policy of advertising is the procedure of preference and will only be departed from in limited circumstances.
7. Interviewing for More Than One Position
Occasionally, after a vacancy has been advertised and the selection process is in progress, a second vacancy occurs in the same location, with the same specialty of law. In these circumstances, in the interest of time, the Committee may forego advertising the second vacancy. The members will evaluate the candidates who have responded to the advertised position and decide which of those candidates will be selected for consideration and interview for both vacancies.
2.0 The Judicial Candidate Information Form
1. All candidates must complete a typed Judicial Candidate Information Form (revised) which has been designed to elicit information that is not usually included in a standard curriculum vitae, such as the nature of the legal work and experience gained in various positions the candidates have held, including pre-law experience. Also, applicants are required to express their reasons for wanting to become a judge and provide an appraisal of their own qualifications for being a judge.
Candidates who send in their standard curriculum vitae and do not complete the Committee’s form are not considered.
2. Candidates are required to provide 14 copies of the Judicial Candidate Information Form together with a copy each of the signed Security Release Form, Release of Information Form and Authorization and Release Form in the first instance, and for subsequent applications, 14 copies of a letter requesting consideration. Should a candidate wish to change any information in his or her application, he or she must send in 14 copies of a fully revised Judicial Candidate Information Form.
3. A candidate must apply by application or letter for each and every advertised vacancy that is of interest. The Committee does not automatically consider applications on file. It is preferred that a candidate submit a new application after one year to reflect any changes in the application.
4. A Judicial Candidate Information Form is kept on file for one year. At the end of one year, a candidate is advised that his or her form is out of date and in order to maintain a current application, 14 copies of a new revised form should be submitted.
5. All responses to an advertisement to be considered for a judicial vacancy are acknowledged. However, the Committee does not advise candidates that they have not been selected for an interview. Instead, the acknowledgement letter states: “If you are selected for an interview, you will be contacted by telephone during the week of …..” .
6. Candidates who have been interviewed within the previous twelve-month period may not necessarily be re-interviewed but will be equally considered, based on the previous interview, by the Committee in determining its list of recommendations, provided that he or she has applied to be considered for the vacancy advertised.
7. Candidates who are interviewed and/or candidates who have been interviewed on a previous occasion and who have requested to be considered for a particular advertised vacancy are not advised as to whether they have been included in the list submitted to the Attorney General. Also, the Committee does not advise applicants when its work has been completed for a particular judicial vacancy and a list of recommended candidates has been submitted to the Attorney General.
1. The Committee requests that a candidate does not send or have submitted letters of support.
2. The Committee requires a candidate to provide the names, complete residential/office and e-mail addresses, including postal codes, home telephone and business telephone numbers of his or her named references. Care should be taken to provide the correct information before submitting the form. Since the members who check the references frequently do so during evenings and weekends, it is essential that home telephone numbers be provided.
3. All named references receive a letter from the Committee advising them that a candidate has provided their names for reference purposes and that they may be contacted by a member of the Committee. They are advised that they do not have to write to the Committee. Attached to the letter is a list of current Committee members.
4. The Committee maintains strict confidentiality with respect to the information provided by named references and obtained by confidential inquiries.
4.0 Law Society and Other Outstanding Complaints and Claims
1. Membership: To qualify for consideration, candidates must have been a member of the Bar of one of the provinces or territories of Canada for at least 10 years, or, for an aggregate of at least 10 years, been a member of such Bar or served as a judge anywhere in Canada, after being a member of such a Bar, and currently be a member in good standing.
2. Complaints as to Practice: Candidates will generally not be considered for an interview if they have any outstanding complaints registered with a Law Society. The candidate is responsible for ensuring the removal of such complaints; however, if the Committee receives sufficient information as to the complaint being frivolous or lacking in foundation, then such a complaint will not be a bar to the candidate being considered and interviewed, but the candidate will not be recommended until it has been removed.
3. If the candidate has been sanctioned by The Law Society of Upper Canada or any other Law Society, the Committee wants to know the circumstances. The Committee will then decide whether the candidate should still be considered for a judicial appointment.
4. Errors and Omissions Claims: Candidates will generally not be considered for an interview if they have any outstanding Errors and Omissions claims registered with the Lawyers’ Professional Indemnity Company. The candidate is responsible for ensuring the removal or resolution of such claims; however, if the Committee receives sufficient information that the claim is not substantiated, then such a claim will not be a bar to the candidate being considered and interviewed, but the candidate will not be recommended until it has been removed.
5. Civil Claims or Judgments: Members of the Committee would be prepared to consider the application of a candidate who is involved in a civil claim or proceeding if, after receiving details of the proceeding, the members are of the opinion that the nature of the claim is such that it should not prevent the candidate from being considered for a judicial appointment.
6. Other Financial Matters: The Committee must be informed of any outstanding civil judgments, arrears in family support payments, any past or present proposals to creditors or assignments in bankruptcy, or serious financial difficulties of each candidate.
7. The Committee must also be informed by the candidate if he or she is the subject of any current court order.
5.0 Criminal Record
The Committee will not consider a candidate who has a criminal record. It is the responsibility of the candidate to obtain a pardon.
6.0 Conflict of Interest Guidelines
1. The Committee will not consider an application for judicial appointment from a member of the Legislative Assembly if he/she is a member of the political party of the current government. Former members of the Legislative Assembly of the same political party as the current government may apply two years after the date of resignation or retirement from office.
2. Members of the Committee cannot apply to be considered for a judicial appointment for a period of two years from the date they cease to serve as a member of the Committee.
3. No current member of the Committee can act as a reference for a candidate seeking a provincial judicial appointment.
4. Members of the Committee who have a conflict or a perceived conflict in the nature of a potential bias or prejudice in regard to a candidate must declare such conflict and refrain from taking part in the entire process for the vacancy for which the candidate has applied.
7.0 Re-Interviewing Candidates
The Committee does not maintain a pool of candidates who have previously been recommended but not appointed, or interviewed but not recommended.
The Committee does not consider it essential to re-interview a candidate who has been interviewed in the previous twelve months. That candidate will be compared objectively and ranked along with all other persons interviewed for that vacancy so long as the candidate has requested in writing to be considered for that advertised vacancy. Nevertheless, the Committee may, in its discretion, re-interview a previously interviewed candidate, and, in fact, does in circumstances where it deems it appropriate.
8.0 Notice of Vacancies and Transfer after Appointment
When a vacancy in the complement of the Ontario Court of Justice occurs, the Chief Justice of the Ontario Court of Justice, after considering the judicial resources required throughout Ontario, determines the location of the vacancy to be filled and advises the Attorney General accordingly. The Attorney General then requests the Committee to commence its process to identify candidates suitable for judicial appointment in order to make recommendations to him.
Because of the many requests for transfer, the Chief Justice has advised the Committee that while the Chief Justice retains the discretion to assign judges according to the needs of the Court at any time, it is the general policy of the Ontario Court of Justice that no personal request for permanent re-assignment will be considered for a period of at least five years following a judge’s appointment. The determination of a judicial vacancy involves a review and assessment of the needs of the Court and a long-term commitment to the community in which the vacancy is declared. It is a commitment that is made both by the Court and by the judge who is appointed to that position. Generally speaking, where a judge is appointed to sit at a base court location and the judge does not live within that community or near to it, the Court will expect the judge to move either to the community or to within a reasonable distance of it shortly after the judge’s appointment. The Court will, as set out in the Judge’s Manual in those circumstances, pay for the cost of transportation for the judge and the judge’s family, and for moving expenses. Once a judge has been on the bench for a period of five years, the judge may request a re assignment to another base court location. If a vacancy subsequently arises, that request will be considered along with requests received from other judges who wish to move to the same location. Other factors will also be taken into account, including the needs of the locations involved, the views of the regional senior judges and of the judges at the affected locations.