Guidelines for Advisory Committee members

December 2006

Table of Contents

• Foreword
• Meeting of Committee Chairs with Minister
• Assessments
• Commissioner for Federal Judicial Affairs and Executive Director, Judicial Appointments
• Committee Chairs
• Duties of the Chair
• Committee Membership
• Composition
• Communication with Candidates
• Conference Calls
• Confidentiality
• Conflicts of Interest & Abstentions
• Consultation Form
• Consultations
• Expenses
• Health (Candidates)
• Immunity
• Impediments to Appointment
• Information Concerning the Process
• Interviews
• Executive Director, Judicial Appointments
• Law Society Clearance
• Personal History Form
• Provincial/Territorial Court Judges
• Quorum
• Re-assessments
• References
• Report to Minister of Justice
• Votes

Foreword

Information for candidates for a federal judicial appointment is set out in the separate document Guide for Candidates which explains the appointment process and the role of the independent Advisory Committees. The guidelines and notes which follow are for the use of the members of the Advisory Committees established under the judicial appointment process. They are meant to provide individual Committee members with information and guidance on selected subjects related to the work of the Committees.

This material was compiled with ongoing Committee experience in mind, and is therefore subject to further expansion on the basis of that experience. For ease of reference, subjects covered are listed alphabetically.

Committee members should familiarize themselves with these important guidelines concerning their work. They are invited to consult the undersigned for any additional information they require.

Véronique Joly
Executive Director, Judicial Appointments
and Senior Legal Counsel
Tel.: (613) 992-9400
Fax.: (613) 941-0607

William Brooks
Commissioner for Federal Judicial Affairs
Tel.: (613) 947-1793
Fax.: (613) 995-5615

TOLL FREE: 1-877-583-4266

Meeting of Committee Chairs with Minister

The Minister of Justice meets periodically with the Chairs of all Committees for an exchange of views concerning the operations of the judicial appointments process.

These meetings are arranged by the Commissioner for Federal Judicial Affairs, and usually take place in Ottawa. Travel and other expenses to attend these meetings are reimbursed.

Assessments

Professional competence and overall merit are the primary qualifications for appointment to the Bench.

The Committees are asked to assess lawyer candidates on the basis of two categories - "recommended" or "unable to recommend" for appointment. These categories reflect the advisory nature of the Committee process.

Candidates are notified of the date they were assessed by the Committee. They are not provided with the results of the assessment, which are confidential and solely for the Minister’s use.

Assessments are valid for a period of 2 years. A new Personal History Form must be submitted prior to the expiry date if a candidate continues to be interested in a judicial appointment after the expiry date. In that case a new assessment is undertaken by the Committee and a previous recommendation remains valid until the new assessment is completed. If the new assessment is different than the previous one, supporting comments must be provided by the Committee.

Candidates who are provincial or territorial court judges must renew their candidacy every 5 years. A new Personal History Form must be submitted prior to the expiry date if the candidate wishes to remain on the eligibility list for appointment. Please note that provincial or territorial court judges are not assessed but comments are provided by the Committee.

Commissioner for Federal Judicial Affairs and Executive Director, Judicial Appointments

The Commissioner for Federal Judicial Affairs has overall responsibility for the administration of the appointments process on behalf of the Minister of Justice. The Commissioner is expected to carry out his responsibilities in such a way as to ensure that the system treats all candidates for judicial office fairly and equitably.

The Commissioner’s responsibility is exercised directly or by his delegate, which would normally be the Executive Director, Judicial Appointments.

The Commissioner or the Executive Director, Judicial Appointments must attend every Committee meeting as an ex officio member, and serves as the link between the Minister and the Committees. All communications between the Minister and the Committees are effected through the Commissioner or the Executive Director, Judicial Appointments. They assist the Committee Chair with the agenda regarding the assessments to be completed at each meeting, with the information required for each assessment and with all services required by the Committee.

It is the Commissioner’s and the Executive Director’s particular responsibility, on behalf of the Minister, to ensure that all assessments are completed expeditiously and thoroughly.

To provide assurance of its authenticity, each candidate’s assessment is certified by the Commissioner or the Executive Director, Judicial Appointments prior to submission to the Minister of Justice.

Committee Chairs

The judicial appointees of the Judicial Advisory Committees act as Chairs of their respective Committees for the duration of the Committee’s mandate. A Vice-Chair may be elected to act in the absence of the Chair.

When the Chair is unable to attend a meeting and there is no Vice-Chair, the remaining Committee members may appoint an interim Chair, or one may be designated by the Chair. When Committee members appoint an interim Chair, Committees proceedings must be limited to administrative matters only, such as assignment of Committee work or the timing of future meetings.

Duties of the Chair

• Sets the agenda for the Committee, together with the Executive Director, Judicial Appointments.
• Determines the frequency of meetings and makes arrangements for the meetings, together with the Executive Director, Judicial Appointments.
• Determines Committee procedures regarding internal administrative matters and consultations.
• Ensures all necessary consultations and investigations required for the assessment of each candidate are allocated among Committee members and completed on time.
• Chairs meetings and participates in Committee discussions, and votes when required to break a tie vote.

Committee Membership

When appointing Committee members, the Minister of Justice attempts to reflect factors appropriate to each jurisdiction including geography, language, multiculturalism, and gender.

Composition

• 1 nominee of the provincial or territorial Law Society.
• 1 nominee of the provincial or territorial branch of the Canadian Bar Association.
• 1 nominee of the Chief Justice of the province, or of the Senior Judge of the territory.
• 1 nominee of the provincial Attorney General, or territorial Minister of Justice.
• 1 nominee of the law enforcement community; and
• 3 nominees of the federal Minister of Justice representing the general public.
• 1 ex officio non-voting member: Commissioner for Federal Judicial Affairs or Executive Director, Judicial Appointments.

Lawyer members of the Committees cannot themselves be candidates for judicial appointment for one year following the end of their term of office on the Committee.

Committees are appointed for a three-year term. Exceptionally, this term can be extended by the Minister. Committee members can serve for two consecutive terms only.

Composition – Judicial Advisory Committee for the Tax Court of Canada

• 1 nominee of the Tax Court of Canada.
• 4 nominees of the federal Minister of Justice in consultation with the Chief Justice of the Tax Court.

Communication with Candidates

The Executive Director is the conduit for all communications between the Committee and the candidates. Except during candidate interviews, Committee members must address any inquiries to candidates through the Executive Director. Committee members must not discuss with a candidate formally or otherwise, by whatever means, that person’s candidacy. Candidates wishing to communicate additional information to the Committee must do so through the Executive Director.

Conference Calls

Committee meetings are to be conducted in person. Conference calls are used only on an exceptional basis, such as for completing an assessment, which could not be finalized during a regular Committee meeting, or for assessing one or a few candidates only where it is not practical to insist on an in situ meeting of all Committee members.

The use of a conference call in place of an in situ Committee meeting is subject to the approval of the Executive Director, Judicial Appointments.

Arrangements for conference calls are made by the Committee Chair or the Executive Director, Judicial Appointments.

The rules which apply to regular Committee meetings apply to conference calls. The Executive Director must also participate.

A conference call may also be used during an in-person meeting to permit the participation by telephone of one or more Committee members who are not able to attend in situ. Such members are considered as being in attendance.

Cellular telephones (analog, digital or other) must not be used for Committee work or consultations, as their transmissions can be intercepted and are not secure.

Confidentiality

The evaluation process seeks to protect the reputations and privacy of candidates to the maximum extent possible while also providing accurate and thorough assessments to the Minister of Justice.

• All Committee discussions and proceedings must be treated as strictly confidential, and must not be disclosed to persons outside the Committee.
• All documents and information submitted as part of an application for appointment are to be treated as personal and strictly confidential. The contents of such documents are not to be disclosed except to the Minister of Justice, or, in part, and only where necessary, to those consulted by the Committee. (Partial disclosure to references, or to others consulted, must only occur after receipt of a verbal undertaking to maintain confidentiality and must only be to the extent necessary to allay concerns raised by the application.)
• When no longer required for assessment purposes, all documents received in connection with the appointments process, other than those intended for public education on the process, must be shredded. Each member is responsible for ensuring that all documentation is shredded in a secure and confidential manner. Entrusting such documents to shredding companies or to persons other than a trusted personal assistant is not recommended.
• The information obtained through the consultation of references and other sources is also personal and strictly confidential, and is subject to the same stringent confidentiality requirements as information contained in the candidate’s application itself.
• Applicants are not to be informed of the result of their assessments.
• A previous assessment of a candidate by a prior Committee is available to a successor Committee only through a verbal report from the Executive Director, Judicial Appointments, and only after a consensus has been reached by the Committee on the assessment before it.
• The obligation of Committee members to maintain the confidentiality of applications, discussions, and assessments made during a Committee’s tenure does not end with service on the Advisory Committee. The obligation of confidentiality is enduring.
• See also section on Consultations.

Conflicts of Interest & Abstentions

Conflicts of Interest

Given the objectives of a neutral and fair process and the appearance of a neutral and fair process, the following guidelines should be noted to avoid a conflict of interest or the appearance of one:

• Committee members must not engage in activities outside the Committee, which will result in a conflict of interest with their work on the Committee, or in the appearance of one. Should such a situation develop, the Committee member must immediately inform the Minister, the Committee and the Executive Director, and resign from the Committee.
• Committee members must not participate in the appointments process other than through the exercise of their recognized responsibilities as members of the Advisory Committee.
• The role of the Advisory Committees is to evaluate applications, not to solicit them. Committee members who have previously agreed to act as references must abstain from participating in the candidate’s assessment.
• Committee members must apprise the Committee and the Commissioner or Executive Director of any real or apparent conflict of interest regarding the assessment of a particular candidate.
• Committee members must avoid expressing opinions or voting on the candidacy of any applicant with whom they may have a real or apparent conflict of interest such as a close business or personal relationship, most especially law or business partners, spouses or ex-spouses, relatives, or close friends, since a Committee member’s opinion might either have, or be perceived to have, a disproportionate influence -- positive or negative -- upon the assessment of such candidates. Similarly, Committee members who have acted for or against a candidate in a legal proceeding should declare that fact to the Committee.
• Committee members shall not accept gifts or other consideration from candidates.
• Committee members must not comment outside meetings of the Committee on individual appointments made by the Minister of Justice.

Abstentions

• The proper course of action for a Committee member who finds herself, or himself, in a position of conflict of interest, real or apprehended, is to withdraw from discussions, and abstain from voting on the assessment of any applicant where such a conflict exists, or where such a conflict might reasonably be perceived to exist.
• Abstentions are formally recorded.
• If the are questions on the desirability of abstaining in a given circumstance, the Executive Director, Judicial Appointments, should be contacted. Alternatively, the issue can be put to the Committee as a whole for its view.

Consultation Form

This document, which is provided separately to Committee members, is designed to help record the results of their telephone interviews with those they consult on the merits of a given candidate. Persons consulted will include both references and other names provided by the candidate, and other persons selected or identified by the Committee. In this respect, Committee members are encouraged to vary the contacts with whom they elect to inquire about candidates. Amongst the primary references listed by the candidate, at least 4 must be consulted (assuming they can be reached).

Assessment criteria for each candidate are grouped under headings in the form. Space for check marks or ratings, as well as space for general written comments, to accommodate a variety of individual assessment styles, is provided on the form.

Consultations

1. Methodology

The methodology used to ensure that adequate consultations are carried out for each candidate is at the choice of the Committee. Some of the more common mechanisms used by Committees include the following, or variations thereof:

• all references and other names provided by the candidate are divided up and specifically assigned amongst the Committee members, including the Chair. The Chair may or may not assign judge names to the judicial representative on the Committee;
• the Chair assigns the first half of the references to one Committee member, the other half to a second Committee member; all remaining names other than references are divided up amongst the remaining Committee members;
• the Chair assigns all lawyer names (references and others) amongst the lawyers on the Committee; all judge names to the judicial representative on the Committee; and all remaining names to the remaining Committee members;
• the Chair designates one Committee member to review all new candidate files received, and to draw up an assignment list distributing the consultation of references and others amongst each of the Committee members.

Whatever methodology is used by a Committee it is important that the following considerations apply in all cases:

• when conducting interviews with references and other persons, Committee members must exercise discretion and neutrality;
• questions are to be directed only to the candidate’s fitness for the Bench and no questions are to be asked concerning a candidate’s political views or political affiliation;
• at least 4 of the primary references provided must be consulted, as well as an adequate number of other sources identified by the candidate;
• persons outside the list of names (references and others) provided by the candidate must be consulted;
• persons from both inside and outside the legal community must be consulted;
• the scope and type of consultations must be sufficiently broad to ensure a good reading of the candidate’s personal, as well as professional qualities;
• care must be taken that no one person is called by more than one Committee member regarding the same candidate.

2. Approach to those consulted

New Committee members sometimes express uncertainty about what constitutes an appropriate approach to those selected for consultation (references and other sources). Whatever approach is taken, it is essential to obtain an undertaking to keep any information disclosed in the strictest confidence before revealing anything about the candidate -- including the candidate’s name. The following text is one suggestion for introducing oneself and beginning the consultation.

Good morning, my name is __________. I am a member of the Advisory Committee on Judicial Appointments for the province/territory of __________. I and my fellow Committee members have been appointed by the federal Minister of Justice to assess candidates for appointment as judges. As part of that evaluation process we have found it necessary to consult with lawyers, judges, and members of the community at large. You are someone I believe might be able to give us some insight concerning one of our candidates. I can assure you that any information you provide will be kept in the strictest confidence. Do you have a few moments to give me your views concerning this candidate?

If yes...

"The name of the candidate and some of the information I may disclose in the course of our discussion is strictly confidential. I must ask you to undertake not to disclose this name and any of our conversation to anyone -- now or in the future. Do you agree?"

Committee members may then provide the name of the candidate and devise questions informed by, and designed to elicit comments upon, the assessment criteria listed in the Consultation Form.

In closing...

"Thank you for assisting me, and the Committee, in our assessment of ___________’s candidacy for the Bench. As I mentioned at the outset, the Committee and I will keep your comments, and the very fact of our consultation, entirely confidential. We rely on you to do the same. Thank you once again."

Note. Cellular telephones (analog, digital or other) must not be used for any Committee work or consultations, as their transmissions can be intercepted and are not secure.

See also section on Consultation Form.

Expenses

All reasonable expenses incurred by Committee members in the execution of their work are reimbursable.

Statements of account should be submitted by letter, with accompanying receipts, to the Executive Director, Judicial Appointments.

Examples of major reimbursable expenses include transportation and hotels and meals.

Please note that expense claims are subject to standard federal Treasury Board regulations. Where applicable, the government rate for hotels should be requested, since amounts above this threshold may not be reimbursable.

A list of reimbursable mileage rates is available from the Executive Director, Judicial Appointments.

No receipts are required for minor items such as telephone and other communication expenses, or correspondence expenses.

Health (Candidates)

Any information related to the health of a candidate that could affect suitability for the Bench must be reported to the Minister by the Committee when assessing the candidate. Care must be taken to ensure that such information is reliable. The Committee may request further clarification from the candidate through the Executive Director, Judicial Appointments.

Immunity

Committees exercise an advisory function only, and cannot make binding recommendations. Moreover, there is no entitlement to a judicial appointment. The question of liability is unlikely to arise in this context. Should any issue of this nature arise, it should be referred immediately to the Commissioner or the Executive Director, Judicial Appointments so that appropriate action can be taken.

Impediments to Appointment

A Committee member who learns of information concerning any criminal or other offences, breaches of professional conduct, questionable financial dealings, failure to meet a family support obligation, wrongdoing or other possible impediment to appointment, involving a candidate must immediately advise the Committee and the Executive Director. In an emergency, the Committee member must advise the Committee Chair and seek guidance regarding the appropriate investigations to be undertaken. The Executive Director, Judicial Appointments should also be consulted as necessary. This disclosure requirement applies whether the information relates to a candidate who is to be evaluated or one who has already been evaluated.

Information of this nature, whether it relates to past or current conduct, must be closely reviewed by the Committee. Care must be taken to ensure this review is complete, and based on information which is reliable.

Information Concerning the Process

The policies and procedures of the federal judicial appointments process are also published in the separate document Guide for Candidates, for the information of both candidates and the general public. The Commissioner, or the Executive Director, Judicial Appointments is available to explain these further as required. However, information on the process is subject to the constraints required to protect the identity of candidates and the confidentiality of the Committee’s consultations, proceedings, and reports to the Minister of Justice.

Any information provided by Committee members in response to inquiries must therefore be careful to avoid reference to candidates, or to Committee proceedings or reports indicating the results of a candidate’s assessment. Committee members should refer those making inquiries to these Guidelines and the Guide for Candidates (available from the Executive Director, Judicial Appointments), or, if necessary, to the Executive Director, directly.

Prior to the start of operations by each Committee, Committee members meet with the Executive Director, Judicial Appointments for an information session during which the policies and procedures of the federal judicial appointments process are reviewed. This includes procedures for the consultation of references and others, and the important considerations concerning confidentiality. This information session is designed to ensure that new Committee members are fully informed on the operation of the process, and to ensure the application of consistent standards from one Committee to the next, as well as between all Committees throughout Canada.

Interviews

Given the large number of applications in many provinces and the limited time and resources generally available to Committees, there is no obligation to interview candidates. However, Committees are encouraged to do so whenever division within a Committee or another issue preventing the completion of an assessment arises.

Where required, arrangements for interviews are made by the Executive Director, Judicial Appointments.

Expenses incurred by candidates for interviews are not reimbursable. Those incurred by the Committee are.

Executive Director, Judicial Appointments

See section on Commissioner for Federal Judicial Affairs.

Law Society Clearance

Before submitting a candidate’s file to a Committee, the Executive Director, Judicial Appointments obtains a confirmation from the appropriate Law Society certifying that the candidate has a minimum of 10 years membership plus current standing with the Law Society. This is a requirement for appointment. A candidate's file will not normally be forwarded to the Committee without this confirmation from the Law Society.

The Law Society is also asked to provide information concerning any current or past discipline matter, and any information that could affect a candidate’s fitness for judicial appointment. Information on the candidate’s insurance claims history is also provided by most Law Societies. All information received is transmitted to the Committee with the candidate’s file. Candidates are required to sign a form authorizing the Law Society to provide this information.

The representative of the Law Society on the Committee is expected to possess full particulars concerning any Law Society report on a candidate, for communication to the Committee when the candidate is assessed. This implies a prior inquiry by the representative with the Law Society concerning the report in question.

Where there exists an outstanding matter of discipline not yet resolved, the Committee should defer the completion of its assessment for that candidate (unless the Committee otherwise intends to assess the candidate "Unable to Recommend").

Personal History Form

The Personal History Form is designed to provide the basic data for the Committee assessment of a candidate for judicial appointment. In addition to the usual information which is found in a curriculum vitae, it includes information on the candidate’s non-legal work history, other professional responsibilities, community and civic activities, a description of the qualifications for appointment, and personal matters such as the candidate’s health and financial situation. Candidates are also asked to provide any other information which is relevant to the application, and which might assist the Committee in its assessment.

The Personal History Form must be completed in full by each candidate. A copy is sent to each Committee member with other material in the candidate’s file.

Particular attention must be paid to the "Personal and Other Matters" section of the Personal History Form. Any matter listed there by the candidate which raises concern should be investigated fully as part of the Committee’s assessment. If additional information is required from the candidate, the Executive Director should be asked to obtain it.

The Personal History Form also contains the names of the references provided by the candidate, and those of other persons the candidate believes can be usefully consulted by the Committee. Where applicable, it also shows whether the candidate consents to the consultation of law partners or close associates.

Provincial/Territorial Court Judges

Candidates who are provincial or territorial court judges must complete a Personal History Form which is different from that for lawyers. These candidates are not assessed, but their files are submitted to the appropriate Committee for comments which are then provided to the Minister of Justice, including the results of any confidential consultations undertaken by the Committee. The names of these candidates are automatically placed on the list of those available for appointment for a period of five years unless appointed or withdrawn by the candidate. A Provincial or Territorial Court Judge must renew his or her application every 5 years in order to maintain continuing eligibility.

Where a Committee decides to consult the references of a judge or other persons not named in his or her Personal History Form, the same rules regarding procedure and confidentiality apply (see sections  on Confidentiality and on Consultations).

Quorum

Five, and four in the case of the Committee for the Tax Court, Committee members (other than the Executive Director, Judicial Appointments) constitute a quorum, without which Committee business cannot proceed. Committees should however strive to insure full or near full attendance by all Committee members whenever feasible.

There are no fixed rules concerning the composition of a quorum except that it should include the Committee Chair, Vice-Chair or another member designated to act as interim Chair if the Chair is unable to attend. The Executive Director must also be present.

Re-assessments

The Minister may request that a Committee provide additional information concerning a candidate assessed by that Committee.

The Minister can also request that a Committee re-assess a candidate at any time when information received from other sources is at variance with the assessment made by the Committee.

Exceptionally, a Committee may initiate a re-assessment when it believes it has important new information which is contrary to the information on which that same Committee's previous assessment was made. Prior consultation with the Executive Director, Judicial Appointments is required.

A Committee cannot initiate the re-assessment of a candidate assessed by a previous Committee.

References

• Each candidate is asked to provide the names of references for consultation by the Committee. At least 4 of these primary references must be consulted.
• The Chair allocates responsibility for the consultation of references among the Committee members. This allocation should also extend to the other persons named in the Personal History Form as additional sources of information. There are no fixed rules regarding the consultation of references, but the assignment of these consultations to each Committee member should be clear (see section on Consultations). Care must be taken by the Chair to ensure that, for each candidate, full and complete consultations are undertaken using sources from both inside and outside the application form.
• Committees are not restricted to the references provided by the candidate. Committees are encouraged to routinely consult a large number of other sources inside and outside the legal community who possess information that relates to the candidate’s suitability for the bench. Consistent with the requirement of confidentiality, the identity of these sources need only be revealed to the Committee and the Minister. Committee members should vary their contacts to ensure that no one person or group has a disproportionate influence on the process.
• Consultations with a candidate's references, or with other sources, must be effected on a confidential basis, and the person consulted must be asked to treat the consultation in the same way (see section on Consultations.) These discussions should be limited to the candidate's suitability for the Bench, must not address a person’s political views or political affiliations (except to the degree that they indicate a candidate’s capacity for social involvement) and must not reveal information obtained from others consulted.
• Committees must be careful to only consult those partners or associates of the candidate for whom there is an authorization to consult provided by the candidate. This caution applies to any partners or associates whose names are provided anywhere in the Personal History Form.
• Letters of recommendation are frequently provided by candidates in addition to the names of references. These should also be considered by the Committee.
• In the case of candidates for the Federal Court of Appeal or the Federal Court, the judicial member of the Committee is encouraged to consult with the Chief Justice of the Court concerning the qualifications of the candidate for that court. The results of the consultation with the Chief Justice are reported to the Committee, and considered as an additional element in the assessment of the candidate.

Report to Minister of Justice

The Committee Report is used to transmit the Committee's assessment (lawyers) or commentary (judges) to the Minister of Justice. The assessment for lawyers is one of the following: "recommended" or "unable to recommend" for appointment. For all candidates, the Report also includes a short synopsis supporting the Committee assessment or commentary.

The Report is confidential and is not available to the candidate.

The Report is completed and certified by the Commissioner or the Executive Director, Judicial Appointments and forwarded to the Minister of Justice.

Lawyer candidates are advised of the date their assessment was completed and that the latter has been reported to the Minister of Justice. They are not advised of the result or contents of the assessment. Candidates who are judges are advised that their names are automatically placed on the list of those available for appointment, but are not advised of the contents of the commentary.

Votes

Committee decisions are normally arrived at through a consensus of the Committee members present, without recourse to a recorded vote. Where consensus is not possible the Chair must request that a decision be made by majority vote of the members present. Where a vote is required, the Chair will refrain from voting, unless it is necessary to break an otherwise tied vote. Where a formal vote is necessary, this is recorded.

Where difficulty is experienced in arriving at a decision, completion of its consideration of the candidate should be deferred to a subsequent meeting, and Committee members encouraged to seek additional information to break the impasse. Deferrals must not be used however, to avoid the Committee’s obligation to complete its work.