JUDGES MAY HAVE PAID TO MEET PM
Donating Judges is a series of articles examining the politicization of federal appointments to Canada’s courts and tribunals. It is the result of an eight-month data analysis investigation by the National Post and the Investigative Journalism Foundation.
- National Post - 30 Aug 2023 - Kate Schneider
JOHN WOODS / THE CANADIAN PRESSPrime Minister Justin Trudeau speaks at a Liberal party fundraiser in Winnipeg in March. The percentage of Liberal donors appointed to the judiciary dropped only slightly after the PMO said it stopped using the “Liberalist” database.
At least six current superior court justices may have paid to meet with the prime minister or the deputy prime minister at Liberal Party fundraisers shortly before being appointed.
These findings come in the wake of an earlier analysis by the National Post and the Investigative Journalism Foundation (IJF), which found that over three times as many Liberal party donors have been appointed to judicial office than Conservative donors since 2016.
The IJF and the Post matched the names and cities of federally appointed judges from the government’s Orders in Council database against fundraiser attendance lists from Elections Canada’s Regulated Fundraising Events Registry (covering 2019 to the present) and historical event records posted on the Liberal party’s website. All federal fundraisers with tickets over $200 and featuring a party leader, cabinet minister, or leadership contestant must be reported to Elections Canada.
Persons with similar names of three federally appointed judges to Alberta’s superior trial court appear on the fundraising registry. A Robert Armstrong and Michel Bourque, both of Calgary, attended several fundraisers with high-level cabinet members — sometimes together — with their last attendance at events just a couple months before judges with similar names were appointed to Alberta’s Court of King’s Bench. Robert W. Armstrong of Calgary was appointed to the bench in February 2021 while Michel H. Bourque, also of Calgary, was appointed in December 2021.
A Michel Bourque of Calgary is listed as having attended five Liberal party fundraisers between October 2017 and September 2021, one with Prime Minister Justin Trudeau and two with Deputy Prime Minister Chrystia Freeland. A Robert Armstrong of Calgary attended three fundraisers for the Liberals between July 2018 and October 2020, two with Trudeau in attendance and one with Freeland.
Both Armstrong and Bourque, as well as a Kevin Feth, a similar name to another Alberta judge, appear to have been Laurier Club members, an exclusive club run by the Liberal party for its top donors. Supporters can join the Laurier Club by donating $1,700 per year, the maximum legal limit for contributions to a national party.
None of the three Alberta judges responded to multiple attempts from the Post and the IJF to reach them to confirm that they were the attendees in question. The IJF and the Post also contacted the judges via the court itself. A spokesperson for the court confirmed the questions were forwarded onto the judges giving them the opportunity to respond if desired.
Jana Steele from Toronto was appointed to the Superior Court of Justice of Ontario in May 2020. A Jana Steele from the Toronto area attended two Liberal fundraisers in 2018 and 2019.
The first was a Laurier Club event headlined by Trudeau. The 2019 event was a $1,625 per ticket breakfast reception also hosted by the prime minister and held at the Fairmont Royal York Hotel in Toronto. Previous media reports have also identified Steele as a Liberal supporter.
The Post and the IJF reached out to the Ontario Superior Court of Justice asking about fundraiser attendance. A spokesperson for the court confirmed the emailed questions were forwarded to Steele. Steele did not respond to this message or multiple requests for comment sent to her personal email.
The IJF and the Post were unable to confirm that requests for comment were successfully received by the two other judges, one currently sitting on the Ontario Superior Court of Justice and another on the Supreme Court of Newfoundland and Labrador.
When asked in July why Liberal donors are more likely to be appointed to judicial positions than Conservative and other opposition party donors, a spokesperson for the Prime Minister’s Office (PMO), Mohammad Hussain, responded, “the process is always based on merit. We do not use political party databases.”
The IJF and the Post asked directly in a follow up message if other methods of determining applicants’ political leanings are used besides political databases, such as attendance at fundraisers. In response, another spokesperson for the PMO, Alison Murphy, said: “Our Government has been committed to an open and transparent, merit-based appointments process to encourage continued trust in Canada’s democracy and ensure the integrity of its public institutions.”
The federal judicial appointment process starts with recommendations from independent Judicial Advisory Committees (JACS) and the minister of justice. However, the prime minister has final discretion over who gets appointed. The prime minister is not legally obligated to follow the recommendations provided to him and is not required to disclose when the candidates most highly recommended by the JACS are passed over.
Lori Hausegger, professor of political science at Boise State University and an expert in the Canadian judicial appointment process said that more transparency is needed around the prime minister’s judicial decision-making.
“A key question is whether the current government skipped over others in the pool that weren’t at that fundraiser,” said Hausegger. “Of course, if they were all ‘highly recommended’ and the Liberals chose someone they knew a little more about, that is a much different scenario than if they chose someone ‘recommended’ over someone ‘highly recommended’ who wasn’t at the fundraiser.”
Because of the discretion granted to the prime minister, Duff Conacher, co-founder of Democracy Watch, a non-partisan organization that advocates for government accountability, expressed concerns that prospective judicial applicants attending fundraisers headlined by the prime minister could undermine “public confidence in the independence and impartiality of judges across the country.”
“Having the prime minister at an event and being able to show the prime minister how much you support his party, face-to-face, is something that everyone should be very concerned about, because it’s access and influence that’s only available to those who can afford it and it taints decisions,” said Conacher.
Conacher added that membership in the Laurier Club is particularly noteworthy as it offers exclusive events for members to meet with politicians not available to the general public: “As the Laurier Club shows, Liberals have explicitly said, ‘Give us more cash, you get more access.’ And access gives you the opportunity for influence.”
In 2022, Democracy Watch brought a court case against the federal government alleging that the “too-political” judicial appointments process violates the Charter and unwritten principles of fundamental justice. Conacher confirmed that they are currently waiting on a date for a hearing before the Federal Court of Appeal.
Individuals hoping to be appointed for judicial posts must first submit an application, including a questionnaire. Upon review of their application by the relevant JAC, individuals remain eligible for consideration for two years.
It is unknown whether the judges who may have attended fundraisers did so before or after submitting their applications. It should also be noted that attending these fundraisers did not guarantee access to top Liberals as the number of people in attendance varied across events from several dozen to hundreds of ticket holders.
The PMO previously confirmed in 2019 that it used a private party database called Liberalist to determine whether prospective judicial appointees were Liberal party supporters, whether through donations, fundraiser attendance or party membership.
Federal sources claimed in 2021 that the PMO had stopped using Liberalist to vet applicants.
Earlier this month the National Post and the IJF reported that federal judicial appointments since 2021 still disproportionately benefited Liberal donors compared with donors to other parties. The levels were roughly the same as the years when the database was confirmed in use. Between 2016 and 2020, 78.4 per cent of judges who had donated had given to the Liberals. This percentage only slightly decreased to 72 per cent between 2020 to 2023.
Hausegger noted that these findings may run counter to the Trudeau government’s promise of improving diversity on the bench. According to Hausegger, weighing political connections not only disadvantages applicants affiliated with opposition parties, but also hinders those who historically have not had the same access to the political system.
“One big drawback of political connections factoring into appointments is that political connections are not equally enjoyed,” said Hausegger.
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