Keeping politics parked

As some premiers call for greater say in judicial appointments, the Canadian Bar Association is advising the federal government not to heed them.

“The way judges are appointed ultimately shapes public confidence in our courts,” CBA President Bianca Kratt told Prime Minister Mark Carney in a letter.

“The process, as it currently exists, has real strengths, above all, its meaningful insulation from political considerations. Proposals that would politicize it, such as by granting vetoes to provincial governments, should be resisted.”

On Tuesday, Alberta Premier Danielle Smith, Saskatchewan Premier Scott Moe, Ontario Premier Doug Ford and Quebec Premier François Legault released a joint letter to the prime minister, calling for them to be more actively engaged in the process of appointing judges to courts of appeal and superior trial courts.

“As Premiers from across Canada, we write jointly to advance reform to the process of appointments to the superior trial courts and courts of appeal of the provinces, as well as to the Supreme Court of Canada,” their letter said.

“We are calling for a new, collaborative approach, wherein our governments can meaningfully engage in filling judicial positions in our respective jurisdictions.”

As part of that, the premiers say appointments should come from lists of candidates recommended by provincial governments.

“Active engagement of our governments will help ensure that judicial appointments appropriately reflect the diversity and unique needs of each province and territory,” their letter stated.

Kratt says the system of judicial advisory committees that evaluate and recommend candidates for the bench already has substantial representation from provincial institutions, including law societies, justice ministers, chief justices, and the CBA’s provincial branches.

This allows the federal government to gather extensive provincial input while preserving the apolitical nature of the process.

“Any change that lets a provincial government discard committee recommendations would invite politicization, and thus be a step backward,” Kratt says.

Justice Minister Sean Fraser told reporters this week the current selection process is working just fine.

“We welcome provincial governments’ participation in that process and proactively reach out after we receive recommendations through the judicial advisory committees to test with our provincial counterparts whether they’ve got information about the reputation of the people we’re considering,” he said.

As for using a proposed list of candidates from the premiers, Fraser added that's “not something that we’re considering at this point in time.”

The premiers want the provinces and the federal government to have equal access to the same information on all assessed judicial candidates. They're suggesting that would promote an “open and cooperative federalism” and strengthen public confidence in the system.

Provincial and territorial governments in Canada appoint provincial and territorial court judges, while the federal government’s authority to appoint superior court judges under Section 96 of the Constitution Act, 1867, has been understood and accepted for more than 150 years, and repeatedly affirmed by the Supreme Court. Ottawa is also responsible for appointments to the federal courts and the Supreme Court of Canada.

Kratt notes that Canada’s judicial appointment system differs from those of many other countries by design.

“This isn’t a flaw; our court system is unique, and every country’s appointment process should reflect the constitutional framework it serves.”

She says that provincial superior courts have broad jurisdiction to hear federal and provincial matters, and are empowered to strike down federal and provincial laws. That’s quite different than jurisdictions like the United States and Australia, where state courts mainly restrict themselves to state matters.

All of this is why the current system of federal appointments, based on substantial provincial input, makes sense. Rather than changing it, improvement efforts should focus on enhancing diversity on the bench, filling vacancies faster, addressing systemic barriers to judicial careers, boosting recruitment in underrepresented communities, and increasing transparency in the appointment process.

“Canadian political leaders should also be making every effort to relieve the significant resource pressures that contribute to court delays and complicate recruitment and retention of qualified judges,” Kratt says.

Further, they should be working to protect judges from threats and personal attacks, and bolstering public confidence in the courts.

She says that won’t happen, nor will diversity be enhanced, “by replacing a merit-based, relatively apolitical process with provincial government vetoes.”

This isn’t the first effort by provinces to change the appointment rules.

In January, Smith sent a letter to Carney calling on him to give Alberta a formal and meaningful role in the federal judicial appointment process to boost public confidence in the administration of justice, support national unity within Alberta, and ensure judicial decision-making reflects the expectations of Albertans. She threatened to withhold funding “to support new judicial appointments” until the province got its way.

At the time, Kratt and CBA Alberta President Christopher Samuel told Smith in a letter that judicial appointments must respect fundamental principles: the non-partisan nature of the appointment process, transparency in selection criteria and mechanisms, and the preservation of judicial independence. What Alberta was proposing would “fundamentally compromise" all three.

“The suggestion in your letter that judges who are appointed through this thorough process do not reflect the “values and expectations of Albertans” underscores the political nature of your proposal,” they wrote.

In Quebec last year, the National Assembly unanimously supported a resolution calling for greater power to appoint judges.

Justice Minister Simon Jolin-Barrette brought the motion as he wants to amend the Constitution Act to state that “the judges of the Superior Courts of Quebec are chosen from among the members of the Quebec Bar who have been recommended by the Government of Quebec.”

Earlier this week, he said the federal government’s unilateral appointments of judges are “an anomaly we must correct.”