Judicial appointments in Canada
Encyclopedia
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.
established for each province (Ontario and Quebec have 3 and 2 committees respectively due to their larger population) or territory. 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 an Puisne Chief 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.
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
.
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.
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.
In response to the critics, Prime Minister Paul Martin
changed the appointment process slightly 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. However, when the names of Justices Abella
and Charron
were put forward, parliament was dissolved
, and thus unable to form committees. The Prime Minister subsequently named an ad hoc
committee of parliamentarians that would both consider the process to be used, and hear from the Minister of Justice concerning the particular nominees. 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. In 2004, when this process was practiced for the first time, 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.
In February 2006
, Prime Minister Stephen Harper
increased access to candidates, allowing an ad hoc committee of parliamentarians to interview the candidacy of Marshall Rothstein
, prior to his appointment. The Prime Minister still has the final say on who becomes the candidate that is recommended to the Governor General for appointment to the court.
Provinces and territories of Canada
The provinces and territories of Canada combine to make up the world's second-largest country by area. There are ten provinces and three territories...
(except Nunavut
Nunavut
Nunavut is the largest and newest federal territory of Canada; it was separated officially from the Northwest Territories on April 1, 1999, via the Nunavut Act and the Nunavut Land Claims Agreement Act, though the actual boundaries had been established in 1993...
): superior
Superior court
In common law systems, a superior court is a court of general competence which typically has unlimited jurisdiction with regard to civil and criminal legal cases...
(upper level) courts appointed by the federal government, and a provincial or territorial court
Provincial Court
The Provincial and Territorial Courts in Canada are local trial "inferior" or "lower" courts of limited jurisdiction established in each of the provinces and territories of Canada. These courts typically hear criminal, civil , family, traffic, and bylaw cases...
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
Governor General of Canada
The Governor General of Canada is the federal viceregal representative of the Canadian monarch, Queen Elizabeth II...
on the advice
Advice (constitutional)
Advice, in constitutional law, is formal, usually binding, instruction given by one constitutional officer of state to another. Especially in parliamentary systems of government, Heads of state often act on the basis of advice issued by prime ministers or other government ministers...
of the federal
Cabinet of Canada
The Cabinet of Canada is a body of ministers of the Crown that, along with the Canadian monarch, and within the tenets of the Westminster system, forms the government of Canada...
cabinet
Cabinet (government)
A Cabinet is a body of high ranking government officials, typically representing the executive branch. It can also sometimes be referred to as the Council of Ministers, an Executive Council, or an Executive Committee.- Overview :...
. Appointments to other superior courts which have jurisdiction for all Canada—the Federal Court
Federal Court of Canada
The Federal Court of Canada was a national court of Canada that heard some types of disputes arising under the central government's legislative jurisdiction...
, the Federal Court of Appeal, the Tax Court of Canada
Tax Court of Canada
The Tax Court of Canada , established in 1983 by the Tax Court of Canada Act, is a federal superior court which deals with matters involving companies or individuals and tax issues with the Government of Canada....
, and to the Supreme Court of Canada
Supreme Court of Canada
The Supreme Court of Canada is the highest court of Canada and is the final court of appeals in the Canadian justice system. The court grants permission to between 40 and 75 litigants each year to appeal decisions rendered by provincial, territorial and federal appellate courts, and its decisions...
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.
Appointments to the superior courts in each province or territory
Candidates for these courts are screened by a judicial advisory committeeCanadian Judicial Council
The Canadian Judicial Council is a federal body created under the Judges Act , with the mandate to "promote efficiency, uniformity, and accountability, and to improve quality of judicial service in the superior courts of Canada". The Council is also mandated to review "any complaint or allegation"...
established for each province (Ontario and Quebec have 3 and 2 committees respectively due to their larger population) or territory. Each committee is composed of representatives of the federal and provincial (or territorial) governments, the provincial (or territorial) law society
Law society
A Law Society in current and former Commonwealth jurisdictions was historically an association of solicitors with a regulatory role that included the right to supervise the training, qualifications and conduct of lawyers/solicitors...
, the Canadian Bar Association
Canadian Bar Association
The Canadian Bar Association represents over 37,000 lawyers, judges, notaries, law teachers, and law students from across Canada.-History:The Association's first Annual Meeting was held in Montreal in 1896. However, the CBA has been in continuous existence in its present form since 1914...
, the judiciary, and the general public. In 2006, the federal government added a representative of the police
Policing in Canada
In Canada, there are three levels of police forces: municipal, provincial, and federal. Constitutionally, law enforcement is a provincial responsibility, and most urban areas have been given the authority by the provinces to maintain their own police force...
to the committees.
Lawyers who meet the legal
Law of Canada
The Canadian legal system has its foundation in the British common law system, inherited from being a former colony of the United Kingdom and later a member of the Commonwealth of Nations. Quebec, however, still retains a civil system for issues of private law...
and constitutional
Constitution of Canada
The Constitution of Canada is the supreme law in Canada; the country's constitution is an amalgamation of codified acts and uncodified traditions and conventions. It outlines Canada's system of government, as well as the civil rights of all Canadian citizens and those in Canada...
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
Minister of Justice (Canada)
The Minister of Justice is the Minister of the Crown in the Canadian Cabinet who is responsible for the Department of Justice and is also Attorney General of Canada .This cabinet position is usually reserved for someone with formal legal training...
.
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
Chief Justice of Canada
The Chief Justice of Canada, like the eight puisne Justices of the Supreme Court of Canada, is appointed by the Governor-in-Council . All nine are chosen from either sitting judges or barristers who have at least ten years' standing at the bar of a province or territory...
or an Puisne Chief Justice
Puisne Justice
A Puisne Justice or Puisne Judge is the title for a regular member of a Court. This is distinguished from the head of the Court who is known as the Chief Justice or Chief Judge. The term is used almost exclusively in common law jurisdictions such as England, Australia, Kenya, Canada, Sri Lanka,...
, the recommendation to cabinet is made by the Prime Minister of Canada
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
.
"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
November 2005
November 2005 is the eleventh month of that year. It began on a Tuesday and ended after 30 days on a Wednesday.-Portal:Current events:-News collections and sources:See: Wikipedia:News collections and sources....
, a subcommittee of the Canadian parliament
Standing committee (Canada)
In Canada, a standing committee is a permanent committee established by Standing Orders of the House of Commons. It may study matters referred to it by special order or, within its area of responsibility in the Standing Orders, may undertake studies on its own initiative...
expressed the need for change and for more transparency
Transparency (social)
Transparency is a general quality. It is implemented by a set of policies, practices and procedures that allow citizens to have accessibility, usability, utility, understandability, informativeness and auditability of information and process held by centers of authority...
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.
Appointments to other superior courts
Appointments to the Federal CourtFederal Court (Canada)
The Federal Court is a Canadian trial court that hears cases arising under certain areas of federal law. The Federal Court is a superior court with nationwide jurisdiction...
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
November 2006
November 2006 was the eleventh month of that year. It began on a Wednesday and 30 days later, ended on a Thursday....
.
Appointments to the Supreme Court of Canada are subject to the legal requirement that three judges must be appointed from Quebec
Quebec
Quebec or is a province in east-central Canada. It is the only Canadian province with a predominantly French-speaking population and the only one whose sole official language is French at the provincial level....
; by convention
Constitutional convention (political custom)
A constitutional convention is an informal and uncodified procedural agreement that is followed by the institutions of a state. In some states, notably those Commonwealth of Nations states that follow the Westminster system and whose political systems derive from British constitutional law, most...
, the other 6 are appointed from Ontario
Ontario
Ontario is a province of Canada, located in east-central Canada. It is Canada's most populous province and second largest in total area. It is home to the nation's most populous city, Toronto, and the nation's capital, Ottawa....
(3), Western Canada
Western Canada
Western Canada, also referred to as the Western provinces and commonly as the West, is a region of Canada that includes the four provinces west of the province of Ontario.- Provinces :...
(2), and Atlantic Canada
Atlantic Canada
Atlantic Canada is the region of Canada comprising the four provinces located on the Atlantic coast, excluding Quebec: the three Maritime provinces – New Brunswick, Prince Edward Island, and Nova Scotia – and Newfoundland and Labrador...
(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
February 2006
February 2006: ← – January – February – March – April – May – June – July – August – September – October – November – December - →...
a parliamentary committee was allowed to interview the Prime Minister's selected candidate prior to his appointment.
Appointments to the provincial court in each province
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.Changes to the Supreme Court of Canada appointment process
The appointment process has been the source of some controversy in recent years, as appointments occur with no input from parliamentParliament of Canada
The Parliament of Canada is the federal legislative branch of Canada, seated at Parliament Hill in the national capital, Ottawa. Formally, the body consists of the Canadian monarch—represented by her governor general—the Senate, and the House of Commons, each element having its own officers and...
or opposition political parties
Official Opposition (Canada)
In Canada, Her Majesty's Loyal Opposition , commonly known as the Official Opposition, is usually the largest parliamentary opposition party in the House of Commons or a provincial legislative assembly that is not in government, either on its own or as part of a governing coalition...
. Critics have alleged that this process has allowed the Prime Minister
Prime Minister of Canada
The Prime Minister of Canada is the primary minister of the Crown, chairman of the Cabinet, and thus head of government for Canada, charged with advising the Canadian monarch or viceroy on the exercise of the executive powers vested in them by the constitution...
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.
In response to the critics, Prime Minister Paul Martin
Paul Martin
Paul Edgar Philippe Martin, PC , also known as Paul Martin, Jr. is a Canadian politician who was the 21st Prime Minister of Canada, as well as leader of the Liberal Party of Canada....
changed the appointment process slightly 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. However, when the names of Justices Abella
Rosalie Abella
Rosalie Silberman Abella, is a Canadian jurist. She was appointed in 2004 to the Supreme Court of Canada, becoming the first Jewish woman to sit on the Canadian Supreme Court bench.- Early life :...
and Charron
Louise Charron
Louise Charron is a Canadian jurist. She was appointed to the Supreme Court of Canada in October, 2004, and is the first native-born Franco-Ontarian Supreme Court judge...
were put forward, parliament was dissolved
Dissolution of parliament
In parliamentary systems, a dissolution of parliament is the dispersal of a legislature at the call of an election.Usually there is a maximum length of a legislature, and a dissolution must happen before the maximum time...
, and thus unable to form committees. The Prime Minister subsequently named an ad hoc
Ad hoc
Ad hoc is a Latin phrase meaning "for this". It generally signifies a solution designed for a specific problem or task, non-generalizable, and not intended to be able to be adapted to other purposes. Compare A priori....
committee of parliamentarians that would both consider the process to be used, and hear from the Minister of Justice concerning the particular nominees. In addition to the parliamentarians, the committee also had two members of the Canadian Judicial Council
Canadian Judicial Council
The Canadian Judicial Council is a federal body created under the Judges Act , with the mandate to "promote efficiency, uniformity, and accountability, and to improve quality of judicial service in the superior courts of Canada". The Council is also mandated to review "any complaint or allegation"...
, sitting judges who participated in the closed door
In camera
In camera is a legal term meaning "in private". It is also sometimes termed in chambers or in curia.In camera describes court cases that the public and press are not admitted to...
discussions on the process, and recused themselves for the consideration of the specific appointees. In 2004, when this process was practiced for the first time, committee members from the Conservative Party of Canada
Conservative Party of Canada
The Conservative Party of Canada , is a political party in Canada which was formed by the merger of the Canadian Alliance and the Progressive Conservative Party of Canada in 2003. It is positioned on the right of the Canadian political spectrum...
refused to sign their committee's final report, calling the entire process "insufficient."
In April 2005
April 2005
April 2005: ← – January – February – March – April – May – June – July – August – September – October – November – December – →...
, the Liberal government
Twenty-Seventh Canadian Ministry
The Twenty-Seventh Canadian Ministry was the cabinet chaired by Prime Minister Paul Martin. It governed Canada from 12 December 2003 to 6 February 2006, including the last five months of the 37th Canadian Parliament and all of the 38th...
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
Member of Parliament
A Member of Parliament is a representative of the voters to a :parliament. In many countries with bicameral parliaments, the term applies specifically to members of the lower house, as upper houses often have a different title, such as senate, and thus also have different titles for its members,...
from each recognized party
Official party status
Official party status refers to the Canadian practice of recognizing political parties in the Parliament of Canada and the provincial legislatures. The type of recognition and threshold needed to obtain it varies...
, 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.
In February 2006
February 2006
February 2006: ← – January – February – March – April – May – June – July – August – September – October – November – December - →...
, Prime Minister Stephen Harper
Stephen Harper
Stephen Joseph Harper is the 22nd and current Prime Minister of Canada and leader of the Conservative Party. Harper became prime minister when his party formed a minority government after the 2006 federal election...
increased access to candidates, allowing an ad hoc committee of parliamentarians to interview the candidacy of Marshall Rothstein
Marshall Rothstein
Marshall Rothstein, QC, B.Comm, LLB is a Puisne Justice of the Supreme Court of Canada.-Early life:Born in Winnipeg to Jewish parents who immigrated from Eastern Europe, he received a Bachelor of Commerce in 1962 and an LL.B. in 1966 from the University of Manitoba...
, prior to his appointment. The Prime Minister still has the final say on who becomes the candidate that is recommended to the Governor General for appointment to the court.
See also
- At Her Majesty's pleasureAt Her Majesty's pleasureAt Her Majesty's pleasure is a legal term of art derived from all legitimate authority for government stemming from the Crown. Originating from the United Kingdom, it is now used throughout the Commonwealth realms...
- Judicial Appointments Board for ScotlandJudicial Appointments Board for ScotlandThe Judicial Appointments Board for Scotland is public body responsible for making recommendations on appointments to judicial offices in Scotland...
- Judicial Appointments CommissionJudicial Appointments CommissionThe Judicial Appointments Commission is responsible for selecting judges in England and Wales. It is a non-departmental public body which was created on 3 April 2006 as part of the reforms following the Constitutional Reform Act 2005...