Judicial appointments in Canada are made by
the federal government or provincial government. Superior and federal court judges are appointed by federal government, while inferior courts are appointed by the provincial government.
Court system
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.
Provincial courts
Advisory committee
Candidates for these courts are screened by a judicial advisory committee established for each province or territory. Several provinces have created arm's length committees that make a short list of recommendations.
Committees are often composed of representatives of the federal and provincial governments, the legal profession, the judiciary, and the general public.
Ontario Judicial Appointments Advisory Committee
In Ontario, the Judicial Appointments Advisory Committee (JAAC) is made up of 13 members: 7 lay members, 2 judges, 1 member appointed by the Ontario Judicial Council, and 3 from the legal community. JAAC recommends a list of 3 or 4 candidates, far less than its federal counterpart.
Proponents of the system argue that this procedure has limited the scope of
patronage in appointtsmens to Ontario courts, and has diversified the makeup of judges in the province.
Unlike other committees, the JAAC advertises openings and interviews candidates in person.
Application
Lawyers who meet the
legal
Law is a set of rules that are created and are law enforcement, enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. ...
and
constitutional
A constitution is the aggregate of fundamental principles or established precedents that constitute the legal basis of a polity, organisation or other type of entity and commonly determine how that entity is to be governed.
When these prin ...
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. Some committees interview the candidate.
Superior and federal courts
Judicial Appointment Committees
A committee of eight persons vets candidates in each region across Canada.
Each candidate is assessed as being "recommended" or "not recommended."
A third designation, "highly recommended" was eliminated in 2007, which critics say enhanced the government's ability to make patronage appointments.
The federal government said the system emphasizes merit, and the large pool allows the government "to address the particular needs of the court in question."
Minister of Justice
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
A justice ministry, ministry of justice, or department of justice is a ministry or other government agency in charge of the administration of justice. The ministry or department is often headed by a minister of justice (minister for justice in a ...
.
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
A puisne judge or puisne justice (; from french: puisné or ; , 'since, later' + , 'born', i.e. 'junior') is a dated term for an ordinary judge or a judge of lesser rank of a particular court. Use
The term is used almost exclusively in common law ...
, the recommendation to cabinet is made by the
Prime Minister of Canada
The prime minister of Canada (french: premier ministre du Canada, link=no) is the head of government of Canada. Under the Westminster system, the prime minister governs with the confidence of a majority the elected House of Commons; as su ...
.
"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.
Federal courts
Appointments to the
Federal Court and to the
Federal Court of Appeal
The Federal Court of Appeal (french: Cour d'appel fédérale) is a Canadian appellate court that hears cases concerning federal matters.
History
Section 101 of the Constitution Act, 1867 empowers the Parliament of Canada to establish "addit ...
are subject to the application and assessment procedure.
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
The ''Supreme Court Act'' (the ''Act'') is an Act passed by the Parliament of Canada which established the Supreme Court of Canada. It was originally passed in 1875 as the ''Supreme and Exchequer Courts Act''. However, at the time, the Supreme Co ...
. Judges of the court are made up of eight
puisne judge
A puisne judge or puisne justice (; from french: puisné or ; , 'since, later' + , 'born', i.e. 'junior') is a dated term for an ordinary judge or a judge of lesser rank of a particular court. Use
The term is used almost exclusively in common law ...
s 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
The governor general of Canada (french: gouverneure générale du Canada) is the federal viceregal representative of the . The is head of state of Canada and the 14 other Commonwealth realms, but resides in oldest and most populous realm, ...
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
Quebec ( ; )According to the Canadian government, ''Québec'' (with the acute accent) is the official name in Canadian French and ''Quebec'' (without the accent) is the province's official name in Canadian English is one of the thirtee ...
. By
convention, the other 6 are appointed from
Ontario
Ontario ( ; ) is one of the thirteen provinces and territories of Canada.Ontario is located in the geographic eastern half of Canada, but it has historically and politically been considered to be part of Central Canada. Located in Central C ...
(3),
Western Canada
Western Canada, also referred to as the Western provinces, Canadian West or the Western provinces of Canada, and commonly known within Canada as the West, is a Canadian region that includes the four western provinces just north of the 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
In modern politics, and history, a parliament is a legislative body of government. Generally, a modern parliament has three functions: representing the electorate, making laws, and overseeing the government via hearings and inquiries. Th ...
or
opposition political parties. Critics have alleged that this process has allowed the
Prime Minister
A prime minister, premier or chief of cabinet is the head of the cabinet and the leader of the ministers in the executive branch of government, often in a parliamentary or semi-presidential system. Under those systems, a prime minister i ...
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 judge
Judicial activism is a judicial philosophy holding that the courts can and should go beyond the applicable law to consider broader societal implications of its decisions. It is sometimes used as an antonym of judicial restraint. The term usually ...
s 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
Under Martin
In response to the critics, Prime Minister
Paul Martin
Paul Edgar Philippe Martin (born August 28, 1938), also known as Paul Martin Jr., is a Canadian lawyer and politician who served as the 21st prime minister of Canada and the leader of the Liberal Party of Canada from 2003 to 2006.
The son o ...
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
Abella, often known as Abella of Salerno or Abella of Castellomata, was a physician in the mid fourteenth century. Abella studied and taught at the Salerno School of Medicine. Abella is believed to have been born around 1380, but the exact time o ...
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, 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
The Canadian Judicial Council (CJC; french: Conseil canadien de la magistrature) is the national council of the judiciary of Canada, overseeing the country's federal judges.
The Council has 41 members, composed of chief justices and associate chi ...
, 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
A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members o ...
from each
recognized party, a retired judge and, from the region where the vacancy arises, a nominee of the provincial
Attorneys General
In most common law jurisdictions, the attorney general or attorney-general (sometimes abbreviated AG or Atty.-Gen) is the main legal advisor to the government. The plural is attorneys general.
In some jurisdictions, attorneys general also have exe ...
, 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.
Under Harper
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
Marshall Rothstein (born December 25, 1940) is a former Puisne Justice of the Supreme Court of Canada.
Early life
Born in Winnipeg, Manitoba, to Jewish parents who immigrated from Eastern Europe, he received a Bachelor of Commerce in 1962 and an ...
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 whom to recommend for appointment.
In 2011, Harper again appointed two Supreme Court justices, Andromache Karakatsanis
Andromache Karakatsanis (born October 3, 1955) is a Canadian jurist. She was nominated to the Supreme Court of Canada by Stephen Harper in October 2011. She is the first Greek-Canadian judge on the Court.
Early life
Karakatsanis was born in ...
and Michael Moldaver
Michael Moldaver (born December 23, 1947) is a former Canadian judge. He was a puisne justice on the Supreme Court of Canada from his 2011 appointment by former Prime Minister Stephen Harper until his retirement in 2022. Before his elevation to ...
, from a shortlist of 6 candidates unanimously approved by a multi-party committee of Conservative
Conservatism is a cultural, social, and political philosophy that seeks to promote and to preserve traditional institutions, practices, and values. The central tenets of conservatism may vary in relation to the culture and civilization in ...
, Liberal
Liberal or liberalism may refer to:
Politics
* a supporter of liberalism
** Liberalism by country
* an adherent of a Liberal Party
* Liberalism (international relations)
* Sexually liberal feminism
* Social liberalism
Arts, entertainment and m ...
, and New Democratic Party Members of Parliament
A member of parliament (MP) is the representative in parliament of the people who live in their electoral district. In many countries with bicameral parliaments, this term refers only to members of the lower house since upper house members of ...
. They each later appeared before hoc parliamentary committees, although the committee had no authority to approve or deny the appointments.
In 2013, Harper appointed Marc Nadon
Marc Nadon LL.L. (born September 7, 1949) is a supernumerary judge on the Canadian Federal Court of Appeal. He has practised law in both Quebec and the United Kingdom, focusing on maritime and transportation law. He was also an arbitrator and fo ...
as a member from Quebec. Due to controversy about the appointment, the federal government referred the constitutionality of the appointment to the Supreme Court of Canada. In their decision in '' Reference Re Supreme Court Act, ss 5 and 6'', the Supreme Court quashed his appointment, concluding he did not meet the eligibility criteria provided in the ''Supreme Court Act''. At the time, Chief Justice Beverley McLachlin
Beverley Marian McLachlin (born September 7, 1943) is a Canadian jurist and author who served as the 17th chief justice of Canada from 2000 to 2017. She is the longest-serving chief justice in Canadian history and the first woman to hold the p ...
called Harper to consult with her on the advisability of Nadon's appointment. Harper refused to take the call and criticized McLachlin for making the call. Harper's comments were criticized by the legal community and a complaint was forwarded to the International Commission of Jurists in Switzerland. The ICJ concluded that McLachlin deserved an apology from Harper, but none had been given as of July 2014.
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 Majesty's pleasure
* Judicial Appointments Board for Scotland
The Judicial Appointments Board for Scotland is an advisory non-departmental public body of the Scottish Government responsible for making recommendations on appointments to certain offices of the judiciary of Scotland. It was established in J ...
* Judicial Appointments Commission
The Judicial Appointments Commission (JAC) is an independent commission that selects candidates for judicial office in courts and tribunals in England and Wales and for some tribunals whose jurisdiction extends to Scotland or Northern Ireland.
Sy ...
References
{{reflist
External links
Commissioner for Federal Judicial Affairs
Judiciary of Canada
Judicial nominations and appointments
Court administration