CBA president Bianca Kratt, in a letter to Prime Minister Mark Carney, said 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,” she said.
Canadian Bar Association (CBA) president Bianca Kratt
“Provinces are responsible for keeping communities safe and upholding the rule of law. When provinces are at the table, decisions better reflect the needs of the people they serve,” said Alberta Premier Danielle Smith. “A more collaborative approach will strengthen confidence in the justice system and ensure the appointment process is transparent and consistent.”
The joint request calls for federal judicial appointments to superior trial courts and courts of appeal to be selected from candidates recommended and approved by the relevant province.
“In a country as vast and diverse as Canada, it is past time that provinces have a say in the appointment of the judges making decisions that directly impact the people we represent,” said Ontario Premier Doug Ford. “By working together, we can restore confidence in Canada’s judiciary and help fix critical problems like the broken bail system.”
But Kratt noted the current system of judicial advisory committees evaluating and recommending candidates for the bench have substantial representation from provincial institutions such as law societies, justice ministers and the CBA’s provincial branches.
“By choosing from among the candidates recommended by these committees, the federal government invites extensive provincial input, while preserving the apolitical nature of the process,” she said. “Any change that lets a provincial government discard committee recommendations would invite politicization and thus be a step backward.”
In an email, Justice Canada spokesperson Jeremy Bellefeuille said Canadians are “fortunate to live in a country where judges are not political figures or household names, because judges should be chosen on merit, not politics.”
“Canada’s judicial appointment process is among the most rigorous and independent in the world, and we are committed to keeping it that way,” he said. “Provinces and territories already play an important role throughout the process, and Canada remains committed to consulting them. Judicial independence is a cornerstone of our democracy and essential to protecting the rule of law.”
For his part, University of Alberta law professor Gerard Kennedy said it is doubtful the federal government will change the appointment process.
“For the federal government, they use it as a way to subtly influence the development of the law throughout the country, and that is fundamentally their constitutional prerogative,” he said. “I would be surprised if they were to give up that prerogative.”
University of Guelph political science professor Troy Riddell said the federal government could informally allow provinces to vet the candidates without a constitutional amendment, as long as it ultimately holds the power to make the ultimate decision on appointments.
“That would be technically possible, but it is not surprising the justice minister would not want to give up that kind of authority,” said Riddell, whose research focuses primarily on judicial politics and process. “From a very cynical standpoint, governments of all political stripes have in the past used these appointments to reward the politically faithful. But setting that aside, as a political figure you want to keep the ability to appoint individuals who are making rulings on the important issues of the day.”
In their letter, the premiers called Canada an “outlier” among federal systems, with other countries giving state or provincial governments a direct role in judicial appointments. But Riddell said that comparison is a bit misplaced because of the differences in judicial structures between Canada and other countries.
“In the U.S. and Australia there is a distinct system of federal and state courts where each level of government administers the courts and appoints judges — each court system tends to decide cases involving laws that are restricted to their jurisdiction,” he said. “In Canada, purely provincial courts hear some cases involving federal law, primarily the Criminal Code, and the superior courts hear cases that involve provincial laws and some local matters.”
If the premiers are frustrated with criminal justice decisions and things like bail, Riddell said, roughly 90 per cent of cases are decided by judges or justices of the peace appointed by the province.
“If premiers are frustrated with constitutional law decisions, especially the Charter of Rights, then one can understand a desire to have more say in who gets appointed to the superior courts,” he said. “However, note that in the U.S., federally appointed judges in federal court decide cases in which state laws are said to violate the U.S. Constitution.”
As part of their letter, the premiers say giving them more input on appointments would strengthen public confidence in the justice system and ensure provinces have a meaningful voice in decisions that shape how justice is delivered in their communities.
That argument is plausible, said Kennedy.
“There is an argument that justice, especially at the trial level, is best dispensed locally with local officials having greater say in appointing the judges,” he said. “Maybe that will have an impact in a country that has the regional diversity of Canada in having greater confidence in the judiciary. But all judges swear an oath, and I think they all take seriously to apply the law as they see fit. But there is no doubt in marginal cases that greater sensitivity to local circumstances could be helpful.”
And despite her concerns, Kratt said the system should always be open to improvement. She noted the CBA supports efforts to improve public confidence in the courts and enhance diversity on the bench.
“However, public confidence will not be bolstered, and diversity will not be enhanced, by replacing a merit-based, relatively apolitical process with provincial government vetoes,” she said. “More promising reforms would focus on filling vacancies faster, addressing systemic barriers to judicial careers, boosting recruitment in under-represented communities and increasing the transparency of the appointment process.”
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