A National Post exclusive showcased concerns about the partisan donations of judicial and tribunal appointees after Justin Trudeau became prime minister. Now the Canadian Judicial Council (CJC) is launching a probe into suspicions some may still be making those donations.

Two Ontario Superior Court judges and 15 tribunal members are under investigation.

According to the ethical guidelines outlined by the CJC, "Judges must cease all partisan political activity upon the assumption of judicial office." This includes partisan donations and attending fundraisers.

Prime Minister Trudeau signed the guidelines in a 2015 document entitled Open and Accountable Government, which called for appointees to avoid political activity as much as possible the year prior. 

"In light of the nature of their duties, members of quasi-judicial bodies are subject to a much more stringent standard and should generally avoid all political activities," it read.

As a result of the reforms, the magistrate can investigate justices and tribunal members under suspicion that their continued service would "undermine public confidence in the impartiality, integrity or independence of the judge or their office." 

Amid ongoing calls to urgently fill judicial vacancies, court watchers have pressed the federal government to bolster transparency on the apparent ‘partisanship’ of judicial appointees. https://t.co/JBNLAXSNs7

— Rebel News (@RebelNewsOnline) August 10, 2023

Elections Canada records show that a Superior Court of Ontario justice, Diana Piccoli, allegedly donated at least thrice to the Liberal Party of Canada following her 2019 appointment. 

Another Superior Court judge has alleged ties to the Conservative Party of Canada on suspicion they donated to Pierre Poilievre's leadership campaign in 2022 — a year after receiving a call to serve on the bench.

On August 8, an eight-month investigation by the National Post and the Investigative Journalism Foundation (IJF) uncovered that approximately 76.3% of judges who donated to political parties favoured the Liberal Party of Canada.

Of the 1,308 judicial and tribunal appointments since 2016, "nearly one in five donated to a political party at least once in the decade leading up to their appointment." According to donation records, some appointees made partisan donations of as little as $250 before their appointment.

Further inspection revealed allegations that at least 15 of the 1,308 judicial and tribunal members — appointed by the federal government since 2016 — have donated to the Liberal Party of Canada. 

According to Elections Canada and federal appointment records, Liberal appointees from the following tribunals have made partisan donations since 2016: the Parole Board of Canada, the Immigration and Refugee Board, the Social Security Tribunal, the Canada Industrial Relations Board, the Transportation Appeal Tribunal of Canada, the Canada Agricultural Review Tribunal and the Canadian Nuclear Safety Commission.

Justin Trudeau's Attorney General David Lametti appointed four Liberal Party donors as judges in Ontario and Quebec in a single day last week.https://t.co/4EwUiZIGV7

— Rebel News (@RebelNewsOnline) July 5, 2021

After the publisher and watchdog presented their findings to the CJC, Johanna Laporte, a spokesperson for the council, launched a probe into cases of alleged partisan activity following these appointments.

"While the information provided […] does not make it clear that it relates specifically to the two judges you speak of, in that contributions might have been made by people with the same name, the Council will examine this more closely and investigate as may be necessary, in accordance with the relevant provisions of the Judges Act," said Laporte in a written statement.

Legal scholars have repeatedly viewed the federal appointment process for judges and tribunal members as 'fundamentally political' because Cabinet decides who receives an appointment. 

"We continue to have this challenge of partisan affiliation in those getting appointed," said Erin Crandall, associate professor of political science at Acadia University.

"The concern […] is not so much the quality of the judges that are being appointed. […] The real challenge is the perception of the partisan relationship," he added.

Amid ongoing calls to urgently fill judicial vacancies, court watchers have pressed the federal government to bolster transparency on judicial appointees' apparent partisanship. https://t.co/HCxNK2HO9a

— Rebel News Canada (@RebelNews_CA) August 14, 2023

Others pointed to concerns that the lack of diversity in the judiciary undermines public confidence in Canada's courts, owing to concerns of potential political influence.

Patrick Taillon, professor of constitutional law at Université Laval, said the high proportion of Liberal donors serving as justices over Conservative donors is not coincidental. 

"It is the emblematic reflection of a political will to choose, from among competent candidates […] who are not associated with the political adversaries and ideologies to which the Liberal Party is opposed," he said.

A deeper dive into the donation records uncovered more than one in five (21.4%) nominees to a provincial superior court since 2016 made donations to the Liberal Party before their appointment — over three times higher than Conservative donor appointees (6.8%).

Taillon said this doesn't surprise him as being nominated to a superior court is a "logical" step towards a final appellate court such as the Supreme Court of Canada.

"Placing a large number of judges in this trial court, which is the most important trial court in Canadian law, is politically logical," he said.