Accord to strengthen the independence of the Supreme Court of Canada

1. Introduction

1.1. The Minister of Justice and the Chief Justice of Canada are committed to an accessible and effective justice system that provides high-quality, accessible and timely services to all Canadians.

1.2. The Minister of Justice and the Chief Justice of Canada are committed to the independence of the judiciary, as guaranteed by the Constitution of Canada, so as to strengthen public confidence in the justice system and the rule of law. Pursuant to the Department of Justice Act, the Minister of Justice has the superintendence of all matters connected with the administration of justice in Canada that are not within the jurisdiction of the governments of the provinces, and must see that the administration of public affairs is in accordance with law. This includes upholding the constitution, the rule of law, and respect for the independence of the courts.

1.3. The Minister of Justice and the Chief Justice of Canada affirm the principle of ministerial accountability for the expenditure of public funds and the importance of sound stewardship of public resources. Accountability and transparency in these areas are essential to maintaining public trust. They also acknowledge the Minister’s responsibilities arising by virtue of his or her membership in Cabinet.

1.4. The Minister of Justice and the Chief Justice of Canada acknowledge that they each have important roles with respect to the administration of justice in Canada. They acknowledge that this requires a collaborative and productive relationship.

1.5. The Minister of Justice and the Chief Justice recognize the unique nature of the Supreme Court of Canada as an important national institution at the pinnacle of Canada’s judicial branch.

2. Purpose

2.1. The purpose of this Accord is to recognize the independence of the Supreme Court of Canada by publicly describing the role of the Minister of Justice in making recommendations to the Governor in Council under the Supreme Court Act in relation to the positions of Registrar and Deputy Registrar of the Supreme Court of Canada and in decision-making related to funding for the operations of the Supreme Court of Canada. It also clarifies that the Registrar may enter into contracts for the performance of legal services in a manner that recognizes the independence of the Supreme Court of Canada. 

2.2. This Accord reflects the intentions of the parties but is not intended to be a legally enforceable contract nor to create any rights or obligations which are legally enforceable.

3. Office of the Registrar of the Supreme Court of Canada

3.1. The Office of the Registrar of the Supreme Court of Canada (“Office of the Registrar”) provides all necessary services and support for the Supreme Court of Canada to process, hear and decide cases, as well as serving as the interface between litigants and the Court. Subject to the direction of the Chief Justice, the Registrar heads the Office of the Registrar and manages its employees, resources and activities. 

4. Ministerial responsibility

4.1. Pursuant to the Financial Administration Act, the Minister of Justice is the appropriate Minister for the Office of the Registrar. In light of the principle of Ministerial responsibility to Parliament and the Minister of Justice’s responsibility in relation to the administration of justice, the Minister of Justice sponsors all submissions to Cabinet (including Treasury Board and the Minister of Finance) respecting the Office of the Registrar, including those related to new and ongoing funding requests. 

4.2. Pursuant to the Financial Administration Act the Registrar is the accounting officer for the Office of the Registrar. The Registrar is therefore accountable before appropriate parliamentary committees to answer questions regarding a specified range of responsibilities and duties relating to the management of the Office of the Registrar. The Registrar’s responsibility as accounting officer arises within the framework of ministerial responsibility and accountability to Parliament. 

5. Recommendations to the Governor in Council: Registrar and Deputy Registrar

5.1. Under the Supreme Court Act, the Governor in Council appoints fit and proper persons who are barristers or advocates of at least five years standing to the positions of Registrar and Deputy Registrar. The Minister of Justice makes recommendations to the Governor in Council in respect of those positions.

5.2. Before the Minister of Justice makes a recommendation to the Governor in Council in respect of the appointment of a person to the position of Registrar or Deputy Registrar, a selection process is carried out which includes the following elements:

5.2.1. a selection committee that includes the Chief Justice of Canada or his or her designate;

5.2.2. selection criteria developed by the committee, respecting the requirements of the Supreme Court Act that appointees be fit and proper persons who are barristers or advocates of at least five years standing;

5.2.3. use of a notice of opportunity and other selection tools approved by the selection committee; and

5.2.4. recommendation of qualified candidates to the Minister of Justice by the selection committee. 

5.3. The Minister of Justice consults with the Chief Justice of Canada on the candidates recommended by the selection committee. In making his or her recommendation to the Governor in Council, the Minister of Justice does not recommend candidates who in the opinion of the Chief Justice of Canada are unsuitable to the position. 

5.4. The Minister of Justice recommends a term of appointment of up to five years, taking into account the views of the Chief Justice of Canada as to an appropriate duration for the appointment.

5.5. Subject to provisions 5.2 through 5.4, a person previously appointed as Registrar or Deputy Registrar is eligible to be reappointed in the same or another capacity.

5.6. If the Chief Justice of Canada forms the view that a person appointed to the position of Registrar or Deputy Registrar should be subject to involuntary removal prior to the end of their appointment term, the Chief Justice advises the Minister of Justice of that view along with the reasons for it.

5.7. The Minister of Justice carefully considers the views of the Chief Justice of Canada in determining whether the Minister of Justice will make a recommendation to the Governor in Council in respect of the involuntary removal of that person.

5.8. Before the Minister of Justice on his or her own initiative makes a recommendation to the Governor in Council in respect of the involuntary removal of a person appointed to the position of Registrar or Deputy Registrar, he or she

5.8.1. seeks the views of the Chief Justice of Canada on the performance and conduct of the person and on any other matter relevant to the question of involuntary removal;

5.8.2. consults with the Chief Justice of Canada on whether such a recommendation is justified and appropriate; and

5.8.3. carefully considers the views of the Chief Justice.

5.9. As it relates to the question of involuntary removal, nothing in this Accord is to be construed by the parties as affecting any right to procedural fairness or natural justice that a person appointed to the position of Registrar or Deputy Registrar may have.

6. Funding requests

6.1. All funding requests pertaining to the Office of the Registrar are determined by the Registrar, subject to the direction of the Chief Justice of Canada. This encompasses both the preparation of the proposed annual budget for the upcoming fiscal year, as well as any off-cycle funding requests. In developing the requests, the Registrar may discuss the Court’s funding needs with Treasury Board Secretariat and/or Department of Finance officials, as required.

6.2. Prior to formally submitting a funding request to the Minister of Justice, the Registrar may provide the Minister with a draft of the request. In such case, the Minister meets with the Registrar to discuss the draft funding request and to provide comments on its merits.

6.3. Once finalized, the Registrar formally submits funding requests to the Minister of Justice. The Minister then submits the funding requests to the Minister of Finance, without alteration.

6.4. Once the Minister of Justice submits the funding requests to the Minister of Finance, the Registrar (and officials of the Office of the Registrar) liaises directly with Department of Finance or Treasury Board Secretariat officials, as required, to support the assessment of the requests.

6.5. As deputy head and accounting officer for the Office of the Registrar, the Registrar is best placed to answer any questions and provide information in order to justify requested funding levels. Department of Justice officials therefore refer any such questions or requests for information from Department of Finance or Treasury Board Secretariat officials to the Registrar and his or her officials. The Registrar keeps the Minister of Justice informed of the nature and outcome of the resulting discussions.

6.6. Funding requests pertaining to the Office of the Registrar are always distinct from funding requests for the Department of Justice.

7. Contracting for legal services

7.1. To fulfill his or her mandate, the Registrar can contract for legal services to be provided by private sector law practitioners.

7.2. For this purpose, the Registrar may choose to seek the assistance of the Department of Justice, which has developed policies, guidelines, administrative processes and related expertise in contracting for private sector legal services. 

7.3. Alternatively, the Registrar may choose to directly engage private sector legal services, without the involvement of the Department of Justice. In order to demonstrate sound stewardship of public resources and value for money, contracting for legal services by the Registrar is conducted in a manner that complies with applicable financial controls and is open, accessible, fair and transparent; leverages the benefits of competition; and respects the need for flexibility to effectively respond to program and operational requirements. This includes development by the Registrar of policies, procedures and guidelines to govern the engagement of private sector legal services.

8. Review

8.1. This Accord takes effect on the date of its signature by the Minister of Justice and the Chief Justice of Canada. It applies to funding requests, contracts for legal services, appointments, reappointments and involuntary removals made on or after the date of signature. It is subject to review at the request of either the Minister of Justice or the Chief Justice of Canada.

This accord is effective this 22^nd day of July, 2019.

 

The original version was signed by:

 

The Right Honourable Richard Wagner, P.C.
Chief Justice of Canada

and

The Honourable David Lametti
Minister of Justice and Attorney General of Canada