Ottawa still searching for third Nunavut judge

KIRSTEN MURPHY

Three years after the federal government promised to appoint three superior judges to Nunavut, only two positions have been filled.

“It’s way too long,” said Peter Russell, a retired University of Toronto political science professor who is also an expert on Canada’s justice system.

“There may be a practical answer for the delay, like a lack of good applicants. Obviously you wouldn’t want to send just anybody up. If I was a justice minister, I wouldn’t appoint someone unless they were well familiar with the area.”

Canadian judges are appointed in one of two ways. In most provincial and territorial jurisdictions, superior court judges are appointed by the federal justice minister.

Lower court — sometimes called inferior court — judges, or magistrates, are selected by the respective territorial or provincial government.

Nunavut is in the unique position of having a single, one-level court system. This means that the Nunavut Court of Justice functions as a lower court and a superior court within a unified system.

Nunavut’s two resident superior court judges are Chief Justice Beverly Browne and Justice Robert Kilpatrick. Deputy judges from Yellowknife and Edmonton are routinely flown in to help cope with an overflow of cases that those judges can’t handle.

Martin Cauchon, the federal minister of justice, cannot appoint Nunavut’s third judge until a list of qualified candidates is screened by the Commissioner for Federal Judicial Affairs (the CFJA) in Ottawa.

Suzanne Lebee, the judicial appointments secretary for the CFJA, did not return repeated telephone calls requesting comment on whether or not the process is being delayed.

Each territory and province has its own judicial appointments advisory committee, made up of judges, lawyers, academics and lay people. The committee reviews and ranks potential judicial candidates. The rankings are forwarded to the CFJA.

Judicial affairs then passes the list to the federal justice minister, who makes the final appointment.

Typically, a judge should have 10 years experience practising law, and a clean slate with the law society of their province or territory.

In Nunavut, Justice Beverly Browne heads the seven-person advisory committee. The members are lawyers and community members from the Baffin and the Kivalliq regions. Two lawyers are from the Northwest Territories.

Times are changing

The CFJA recently broke with tradition by advertising Nunavut’s superior court vacancy in national newspapers — a bold move hinting that there is a limited pool of candidates.

Public recruitment is unheard of for a superior court position, but not surprising, given that Nunavut is only three years old, Russell said.

“In Nunavut you’re starting from scratch, you’re way, way up there and it’s a whole new ball game,” he said.

Advertising for lower court judges for the rest of the country, however, is common.

Russell spearheaded one of Ontario’s two judicial advisory committees. He recalled once having a pool of 100 candidates to choose from.

The CFJA’s apparent reluctance to talk with the media did not surprise Russell.

“Transparency is the opposite to what [the appointing agencies] want. They want it done in a very closed way. The less known the better,” he said.

One Ottawa-based lawyer offered some thoughts on why Nunavut has yet to get its third judge. “There are lawyers down here in semi-retirement begging to be appointed. It’s not a question that Nunavut is so horrible. It’s that Nunavut wouldn’t be on the radar for a lot of lawyers,” he said.

Nunavut’s single-court system came about at division in 1999. The government of Nunavut adopted the unified system, which unlike any other court system in Canada combines, civil law, family law and criminal law.

The single court system was chosen, in part, to address Nunavut’s large area and small population.

The judge who presides over a foreclosure matter in civil court may also hear criminal matters such as murder or sexual assault.

No other jurisdiction in Canada, not even the Northwest Territories, uses such a system.

Finding a third judge for Nunavut will be unlike any other judicial appointment in Canada because of the unique cultural and legal challenges judges and lawyers face.

“They have quite a talent hunt on their hands. There, the problems are different, the people are different, the language is different, and the expectations are different,” Russell said.