Judging would-be judges

Current judges talk about the ins and outs of making the leap from lawyer to judge

  By Christopher Guly

April 09 2010 issue


Ontario Family Court Justice Harvey Brownstone has been a member of the bench for 15 years. [Photo by Paul Lawrence for The Lawyers Weekly]

A seasoned civil litigator in practice for the past 33 years, Ormond Murphy is used to asking tough questions in court. And the 58-year-old, Ottawa-based lawyer is not one to shy away from getting answers from colleagues — particularly those with ambitions to sit on the bench.

So, when lawyers apply for a vacant position on the Ontario Court of Justice (OCJ), Murphy, as a member of the Judicial Appointments Advisory Committee (JAAC), wants to know what they will bring to the job and why they want it.

'Do they know their way around the courts and the area of law — family or criminal, for instance — they would deal with as a judge? Are they aware of any issues related to the vacancy for which they’ve applied, such as trial delays or administrative problems — and what are their solutions? How much experience do they have practising in the relevant area of law? If they have none, why do they have a burning desire in that area of law now?

'Or, are they really applying for the position because they’re bored practising law and looking for a career change with a good salary and a pension?'

That’s a sample of the type of grilling candidates can expect when interviewed by the 13-member JAAC (composed of three judges, three lawyers and seven laypeople who serve for three-year renewable terms) — if those applicants end up on the shortlist. Becoming an OCJ judge is a gruelling and time-consuming process.

Ontario Family Court Justice Harvey Brownstone spent the better part of a day filling out the application in 1994 — when JAAC was still in its pilot phase.

After practising criminal law, serving as head of the family law section’s research facility at Ontario Legal Aid and later director of the Ontario government’s Family Responsibility Office, Brownstone — who applied to become a Crown prosecutor but was turned down because he was gay, he was later told — wanted to be a judge 'to help people, one family at a time.'

But appearing before the full committee for a 60-minute interview was 'very intimidating and mortifyingly frightening,' says 53-year-old, Toronto-based Brownstone, who was appointed to the bench 15 years ago.

'You don’t what they’re going to ask or what they already know about you.

You don’t know what the right answers are to the questions they are going to ask you.'

Furthermore, senior lawyers told him he’d never be appointed a judge because of his sexual orientation and 'no government is going to take the risk of appointing an openly gay person,' says Brownstone, who was born in Paris and is fully bilingual.

'I don’t know how I didn’t faint, I was so scared.'

When a judicial vacancy occurs in Ontario, the chief justice notifies the attorney general, who in turn asks JAAC to find suitable candidates for the area of law involved and the location.

(The committee will soon screen candidates for a judicial position — primarily in family law — for Milton, Ont.)

'We don’t create a pool of candidates from which the Attorney General can draw,' explains Hanny Hassan, a London, Ont.-based engineering consultant who chairs JAAC.

Lawyers must complete a detailed Judicial Candidate Information Form and submit 14 copies of it to JAAC — or, if they have applied within the previous 12 months — send in a 'short letter' and forward 14 copies of that to the committee.

'Candidates are required to not only provide information about themselves, but to also argue their case as to why they should be appointed,' says Hassan, who estimates JAAC can receive over 200 applications for a judicial position in Toronto as compared to a smaller community, which may receive about one-quarter the number of candidates.

After reviewing all of the applications received, JAAC members create a short list that is eventually pared down to a select group invited for an interview.

The seven lay members, including Hassan, contact the references (two from the legal community and two from outside of it) provided in the application, while the judges and lawyers on the committee make 'discrete inquiries' about the candidate from people not listed as references.

The three judges phone other judges, while the trio of lawyers call colleagues.

'We rely on the judges and lawyers to validate the candidate’s legal capabilities and get an idea of how that person is perceived by their peers and judges in either the community in which the judicial appointment is going to be based or where they currently practise,' Hassan explains.

But as Brownstone points out, the inquiries were not that discrete, at least in his case. 'I had people coming up to me for weeks saying, ‘Oh, I just want you to know I got a call from the committee and I said something great about you.’ And I was thinking, Oh my God, I didn’t even want these people to know I had even applied.'

Hassan says the committee’s lawyers and judges will also focus on other issues, such as the applicant’s competence and experience in the relevant area of law and his or her participation in law-related or community organizations.

'You need to have an edge over the rest of the candidates, either in your legal competence and community work, or your personality and style, and ability to get along with people,' explains Hassan about how JAAC identifies a lawyer with judicial potential.

It’s a straightforward and comprehensive process — but it doesn’t always go smoothly for would-be judges.

Hassan recalls that with one application, halfway through the 30-minute phone call the reference expressed 'strong misgivings' about the candidate and declined to offer a recommendation.

'If a candidate didn’t make sure references had a clear understanding of what position that person was applying for, the applicant didn’t exercise good judgment. So how could I, as a member of the committee, expect that individual would be good at judging people?'

Sometimes, JAAC also receives 'poor' applications in which the presentation and content are 'not very good,' says Hassan.

'It’s surprising that some lawyers would do that given the rigour with which they practise law but don’t apply that in something as major as a career and life change — and don’t reflect the kind of quality you would expect from a judge.'

However, he points out that most applications are properly prepared and 'stick to the facts' about the lawyer’s careers, taking an overall modest tone.

'They are not boastful, nor are the candidates, typically, when they come for an interview,' says Hassan.

'I think lawyers are concerned about contracting judgeitis, a disease diagnosed by lawyers and the symptoms of which are arrogance that happen when they become judges.'

When interviewed, candidates often 'speak very philosophically about the legal and judicial process.'

They are also asked — usually by the judges on the committee — as to whether they’re prepared to make the 'difficult transition' from practising law to serving as a judge.

'If they’re in a small town, many of their fellow lawyers could appear before them, so having any social contact with them may be out of bounds,' explains Hassan, who adds that Toronto is a large enough city with many lawyers so the issue of impartiality involving a friend might not occur nearly as frequently and would therefore not be as much of a concern.

Still, he says that the wife of a friend of his, who was appointed to a federal judicial position, called Hassan to encourage him to go with her judge-husband for lunch one day. 'And I’m not even in the legal business, but she said he was pretty lonely and was missing camaraderie.'

Brownstone says the committee members posed 'tough questions' during his interview, including whether he thought that the young offenders system was 'too soft' on teenage criminals. 'I said to them, ‘Are we doing such a good job at rehabilitating adult criminals that you want to throw young people into that system too?’ I saw a few eyebrows go up, and I could see I was resonating with them,' says Brownstone.

'Knowing what I now know about the process is that you just have to be yourself.'

'If you’ve made it to the interview stage, they’ve already decided your knowledge of the law is good and your temperament is suitable for the bench.

They want to know whether you can give principled answers to difficult questions and stand by them, and not just sit on the fence and say whatever you think they want to hear. To be a judge, you’ve got to have guts and make tough decisions.'

The Office of the Commissioner for Federal Judicial Affairs Canada also has judicial advisory committees in each of the provinces and territories (though Ontario has three regionally based committees and Quebec has two) as well as for the Tax Court of Canada. Each committee has eight members representing the bench, bar, law enforcement and the general public. The Tax Court search committee has five members.

They too check references and make discrete inquiries about applications, but do not interview candidates, as Murphy points out.

'We get a chance to see the person and get a feel as to whether or not we think that individual has the right stuff to be a judge,' he says of Ontario’s JAAC process. 'We think that our system has the leg up because of our interviews.'

Another difference between the Ontario and federal approaches is that the latter only assesses candidates (excluding those for federally appointed provincial and territorial court judges, though the federal committee provides a 'commentary' on each of those candidates) as 'recommended' or 'unable to recommend' and forwards the list to the federal Justice Minister, who can in turn request more information on or a reassessment of an applicant.

But Murphy doubts that many names are 'tossed out and not found to be satisfactory' in the federal system, since lawyers who apply for a judicial position 'have enough on the ball' to have a good chance of being appointed to a judgeship.

And whereas 'patronage appointments have always been' a reality in the federal arena (the Ottawa Citizen-Canwest News Service recently discovered that 41 judges appointed by the federal Conservatives had donated to the party or its candidates since 2004, while not suggesting the promotions were 'pay back for their financial support'), JAAC has 'virtually eliminated' the risk of political favours 'because we’re the ones who control the names' forwarded to the attorney general, says Murphy, who serves as counsel in the areas of estates and trusts law and civil litigation with Tierney Stauffer LLP in Ottawa.

He explains that after interviewing 10 candidates, Ontario’s JAAC only provides the attorney general with a shortlist of up to six names, which may be ranked or not, if all the candidates are considered 'exceptional' in the committee’s view. The Ontario government can only appoint a judge from that list. But the attorney general isn’t bound by choosing the top-ranked candidate and can undertake separate inquiries on applicants.

Last year was especially busy for JAAC, whose members held meetings and conducted interviews from Wednesday to Friday every two weeks over the summer.

'It’s a heck of an imposition on our time — but we believe that justice delayed is justice denied and when there’s a vacancy, we feel it’s extremely important to make recommendations in a timely manner,' says Murphy.

Normally, JAAC holds interviews — about 25 minutes in length — in Toronto, though the committee has travelled to other cities in the province, including Ottawa and Thunder Bay, Ont.

'The person who makes the best judge is someone who, if you or I had to appear before that person, would come out of that hearing with the sense that you’ve been dealt with fairly,' says Murphy, past-president of the County and District Law Presidents’ Association, which he represents on JAAC. (The Ontario Bar Association and the Law Society of Upper Canada each have representatives on the committee.)

But he has no interest in serving on the bench.

'A judge is very isolated in terms of where he is and what he does. I love what I do.'


Becoming a judge of the Ontario Court of Justice


To qualify, applicants must have at least 10 years membership at the Bar in one of the provinces or territories — along with 'a sound knowledge of the law, an understanding of the social issues of the day and an appreciation for the cultural diversity of Ontario.'

While courtroom experience is a 'distinct asset,' the 13-member Judicial Appointments Advisory Committee (JAAC) will also consider candidates who have experience working with administrative tribunals, academia and in the social policy field.

Applicants with errors and omissions claims or complaints on file with the Law Society of Upper Canada or any other similar law regulating body 'will generally not be considered until such claims have been cleared,' according to JAAC.

However, if the committee receives sufficient information as to the claim or complaint being 'frivolous or lacking in foundation,' then such a claim or complaint will not prevent the candidate from being considered and interviewed — but the candidate will not be recommended until the claim or complaint has been removed from a lawyer’s file or resolved.

JAAC will also consider applicants involved in civil claims or proceedings if it’s of the opinion that 'the nature' of such a claim does not prevent the candidate from being considered. But the committee must be informed of any outstanding civil judgments, arrears in family support payments, and any past or present proposals to creditors or assignments in bankruptcy — issues of which have appeared in past applications, according to JAAC chair Hanny Hassan.

Oh, and if you have a criminal record, don’t bother applying. JAAC won’t consider a candidate who has one.

More on becoming a judge


For more information on becoming an Ontario judge visit www.ontariocourts.on.ca/jaac/en

For information on becoming a federally appointed judge visit www.fja.gc.ca


Commentary by the Ottawa Mens Centre

Harvy Brownstone's employment history speaks volumes about his underlying ideology that places up front, to the diversion of

the other wise substantive issues, his sexual orientation which should not even have anything to do with the judiciary or law.

Harvy Brownstone just can't shut up about being gay and waving his orientation around like some kind of University Diploma

or a certificate that he does not have a personality disorder and or a mental health problem which course does not prevent any

self-centered individual with an agenda from becoming a judge.

This article does detail the process but fails to name names of those "lay persons" who screen judges.

The problem is, the underbelly of the judicary want more similar ethically corrupt individuals for the judiciary

and thats the way its going.

We can expect it to get worse, a lot worse before it improves, if it ever does.