Judicial appointments in Canada

Canada is a federation composed of a federal (central) government and of 10 provinces and 3 territories. There are two levels of courts in each province or territory (except Nunavut): superior (upper level) courts appointed by the federal government, and a provincial or territorial court appointed by the province or territory.

Judicial appointments to the superior courts (trial or appellate) in each province or territory are made by the Governor General on the advice of the federal cabinet. Appointments to other superior courts which have jurisdiction for all Canada—the Federal Court, the Federal Court of Appeal, the Tax Court of Canada, and to the Supreme Court of Canada which is the final court of appeal from all Canadian courts—are also made by the Governor General on the recommendation of the federal cabinet. Appointments to the provincial court in each province are made by the Lieutenant Governor of the province on the recommendation of the provincial government.

Superior courts in each province or territory

Candidates for these courts are screened by a judicial advisory committee established for each province or territory; Ontario and Quebec have three and two committees, respectively, due to their larger population. Each committee is composed of representatives of the federal and provincial (or territorial) governments, the provincial (or territorial) law society, the Canadian Bar Association, the judiciary, and the general public. In 2006, the federal government added a representative of the police to the committees.

Lawyers who meet the legal and constitutional requirements can apply, as well as existing provincial or territorial court judges. These candidates must complete a comprehensive Personal History Form, which is submitted to the appropriate advisory committee. In its assessment of each candidate, the committee reviews the PHF and consults references and other persons both in and outside the legal realm. The candidate's fitness for the bench is assessed by reference to published criteria. If it wishes, the committee can also interview the candidate.

Following its review, the committee categorizes lawyer candidates as "Recommended" or "Unable to Recommend" for appointment, with reasons for this decision. In the case of candidates who are judges, the committee does not categorize the applicant, but instead formulates "comments" regarding the application.

A list of all candidates reviewed by the committee, together with the above categorization and reasons, or "comments" in the case of judge candidates, is forwarded by the committee to the federal Minister of Justice.

The Minister draws an appointment from the list of names received from the committees, and recommends that individual to the federal cabinet. Where the appointment is that of a Chief Justice or a Puisne Justice, the recommendation to cabinet is made by the Prime Minister of Canada.

"Elevation," or the appointment of a superior court judge already in office to another superior court (usually an appellate court), is not subject to the above application and assessment procedures. These appointments are effected through a recommendation to cabinet by the Minister of Justice (or Prime Minister) following consultations undertaken by the Minister.

In November 2005, a subcommittee of the Canadian parliament expressed the need for change and for more transparency in this appointment process. The subcommittee proposed that the Minister consult the Chief Justice of the court involved on the needs of the court prior to an appointment, that specific court vacancies and their requirements be advertised and that, subject to further study, advisory committees develop a short list of interviewed candidates for each vacancy.

Provincial courts

Each province has its own procedures for appointment to its provincial court. Generally, candidates for these courts submit an application to a reviewing council or committee established for the province. After investigations and consultations, this body reports to the appropriate provincial Minister of Justice or Attorney General regarding those considered suitable for appointment. Appointments to the provincial court are made from that list of names.

Federal courts

Appointments to the Federal Court and to the Federal Court of Appeal are subject to the application and assessment procedures outlined above.

Appointments to the Tax Court are subject to candidate assessments by a single five member advisory committee for all Canada which includes a representative of the Tax Court—as a one-year pilot project announced in November 2006.

Supreme Court of Canada

Eligibility for the Supreme Court of Canada is set out in the Supreme Court Act. Judges of the court are made up of eight puisnes judges and the Chief Justice. Candidates must have either been a judge of a superior court or a lawyer for at least ten years in their province's bar. Appointments are made by the Governor General of Canada on advice of the Prime Minister.

Appointments to the Supreme Court of Canada are subject to the legal requirement that three judges must be appointed from Quebec. By convention, the other 6 are appointed from Ontario (3), Western Canada (2), and Atlantic Canada (1). These appointments are not subject to the procedures described above for the appointment of superior court judges, and are made on the basis of a recommendation to cabinet by the Prime Minister. Recently, this has been augmented through the establishment of an ad hoc advisory committee for each vacancy on the Court; this committee reviews a list of 7 nominees submitted by the federal Minister of Justice, and shortlists three candidates from which the Prime Minister chooses a name for appointment. In addition, in February 2006 a parliamentary committee was allowed to interview the Prime Minister's selected candidate prior to his appointment.

Criticism of process

The appointment process has been the source of some controversy in recent years, as appointments occur with no input from parliament or opposition political parties. Critics have alleged that this process has allowed the Prime Minister to effectively "stack" the courts with ideologically like-minded individuals who will support the current government's stance. Conservative critics have argued this leads to the rise of partisan, activist judges instead of neutral ones. Conversely, supporters have justified the process of appointment on the grounds that quiet appointments made as a result of the Prime Minister's consultation with experts result in better choices than ones that would be made in a public process where opposition politicians were allowed to interrogate the nominees and politicize the process.

Recent developments

Liberal government changes

In response to the critics, Prime Minister Paul Martin made a few changes the appointment process in 2004. He indicated his intention to appoint a special parliamentary committee to screen the new nominees and report to parliament on their findings, though neither this committee nor the parliament has the power to block recommendations. Similarly, the committee would not have the ability to directly interview the nominee. The Minister of Justice appeared before the House of Commons Standing Committee on Justice and Human Rights to explain, for the first time in public, the process for selecting the justices.

However, when the names of Justices Abella and Charron were put forward, parliament was dissolved, and thus unable to form committees. The government announced that the nominees would be reviewed by a special parliamentary committee that, which would issue a report to Parliament. An ad hoc parliamentary committee was created to review Abella and Charron's appointments.

In addition to the parliamentarians, the committee also had two members of the Canadian Judicial Council, sitting judges who participated in the closed door discussions on the process, and recused themselves for the consideration of the specific appointees. Committee members from the Conservative Party of Canada refused to sign their committee's final report, calling the entire process "insufficient."

In April 2005, the Liberal government announced another change to the selection process: the advisory committee (which includes many federal nominees) would see a list of seven names given to them by the Minister of Justice and would be required to cut the list to three. The Prime Minister would choose one name from the list of the three remaining candidates to put forward to the Governor General. The advisory committee includes a Member of Parliament from each recognized party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial Attorneys General, a nominee of the law societies and two prominent Canadians who are neither lawyers nor judges. A new advisory committee will be formed each time a Supreme Court vacancy occurs.

Conservative government changes

In February 2006, Prime Minister Stephen Harper's used an "Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada” to interview Marshall Rothstein prior to his appointment. The committee had no power to veto the nomination, which was simply to allow for questions from parliamentarians. The Prime Minister maintained the final say on who to recommend for appointment.

In 2011, Harper again appointed two Supreme Court justices, Andromache Karakatsanis and Michael Moldaver, from a shortlist of 6 candidates unanimously approved by a multi-party committee of Conservative, Liberal, and New Democratic Party Members of Parliament. They each later appeared before hoc parliamentary committees, although the committee had no authority to approve or deny the appointments.

Tenure of judges and removal from the bench

Judges in positions that are under federal control (federally appointed positions) are eligible to serve on the bench until age 75. In some but not all Provincial and Territorial positions, appointed judges have tenure until age 70 instead.

As for removal from the bench, judges have only rarely been removed from the bench in Canada. For federally appointed judges, it is the task of the Canadian Judicial Council to investigate complaints and allegations of misconduct on the part of federally appointed judges. The Council may recommend to the (federal) Minister of Justice that the judge be removed. To do so, the Minister must in turn get the approval of both the House of Commons and the Senate before a judge can be removed from office. (The rules for provincial/territorial judges are similar, but they can be removed by a provincial or territorial cabinet.)

See also

• At Her Majesty's pleasure
• Judicial Appointments Board for Scotland
• Judicial Appointments Commission

External links

• Commissioner for Federal Judicial Affairs
• Canada's Court System, Dept. of Justice