The path to the judiciary once had much less to do with merit than with one’s proximity to power. For the bulk of Canadian history, according to a detailed paper on the subject, “the process of judicial appointment was dominated by patronage.” Armed with near-total discretion over who to admit to the bench, provincial and federal governments lavished appointments on staunch allies and longtime donors. A track record of legal excellence was optional.
By the 1990s, the era of brazen cronyism had largely come to an end. Today, merit matters a great deal. Before we talk about how to shine as a judicial applicant, however, it’s crucial to understand the basics of the current appointment process. To seek out a spot on the Ontario or federal bench, aspiring judges have to submit an application to a non-partisan panel—called a judicial advisory committee—that vets each candidate’s fitness for the role. In both jurisdictions, a committee assigns a rating to each applicant. The options include “highly recommended,” “recommended” and either “not recommended” (in Ontario) or “unable to recommend” (in the federal system). Anyone deemed “highly recommended” or “recommended” goes into a pool of top candidates. In Ontario, when a judicial vacancy arises, the attorney general has two options: appoint someone from the provincial pool or issue a call for new applications. Canada’s minister of justice is not technically required to appoint from the federal pool, but, as a recent paper points out, “this is the norm.” It remains possible to select party loyalists, but the advisory committees have made it nearly impossible for either level of government to pack the bench with unqualified loyalists.
To become a judge, then, it’s vital to build up the sort of career that will impress a committee. Broadly speaking, applicants have to demonstrate a history of first-rate legal work and community leadership. The vetting process also involves a robust reference check. One might imagine that the “recommended” pool is saturated with high-profile lawyers who sit on the board of renowned charities and pal around with other legal heavyweights. Is that true, though?
In close to a dozen on-background interviews with judicial experts, I’ve looked into how the Ontario and federal appointment processes unfold in real life. The truth is, there’s only one rigid requirement: an applicant must have 10 years of post-call legal experience. Beyond that, the advisory committees try not to unthinkingly assess each candidate against a rigid checklist. A top partner at a prestigious firm might seem like an ideal applicant—but if that person has a reputation for treating opposing counsel with disdain, a committee will happily withhold its endorsement. A family lawyer who has never volunteered might seem like a weak applicant—but if that person is a single parent who has very little time to spend on community work, a committee will take that into account. It’s tricky, in other words, to reduce what I’ve learned to a series of fixed guidelines on how to become a judge. But it is possible to lay out a series of general guidelines. That’s what I’ve done below.