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 three levels of courts in each province or territory (except Nunavut): Provincial Court of Appeal, Provincial Superior Court (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 appointments 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 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. Some committees interview the candidate.
Provincial 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." As of 2007, each committee has four members. In 2016, the federal government introduced a revised appointments process that restored the “highly recommended” category.
Members British Columbia Alberta Saskatchewan Manitoba Ontario (East & North) Ontario (West & South) Justice Brenda J. Brown (Supreme Court of British Columbia ) Jan Lindsay, QC (Lindsay LLP)Rajwant (Raji) Mangat (West Coast LEAF)Charlotte A. Salomon, QC (McConnan Bion O'Connor & Peterson) Dean A. Crawford, QC (Pulver Crawford Munroe) Justice Peter W.L. Martin, Wendy E. Best, QC (Dunphy Best Blocksom) Hanan Kamal Campbell (EPCOR Utilities Inc) Michelle Christopher, QC, Jennifer N. Davis (Private practitioner) Danika Billie Littlechild (UNESCO)Jelle Jeen Van Ens (social worker) Justice Brian A. Barrington-Foote, Heather Laing, Q.C. (McDougall Gauley)Diana K. Lee, Q.C., Lisa Watson (Peszko & Watson) Kimberly BeaudinCurtis Kleisinger (Mother Thresa Middle School)Brenda Merasty Justice Diana M. Cameron, Irene A. Hamilton (Manitoba Justice) Priscilla Sternat-Mcivor, Timothy Kurbis, Lorraine Brandson, Aimée Craft, Hymie Weinstein Justice Bonnie R. Warkentin, Marisa Victor, Celina Reitberger, Mary Kloosterman, Antje McNeely, Pierre Riopel Justice Lynne C. Leitch, Beverley K. Jacobs, Allen J. Wynperle, Kuljit K. Bhamra, Lynn Macaulay, Jessica Sartori, Betty-Lou Souter (CEO Community Care) Ontario (Toronto Area) Quebec (West) Quebec (East) New Brunswick Prince Edward Island Nova Scotia Justice Sarah E. Pepall (Court of Appeal for Ontario) Emily C. Cole, Arleen Huggins (Koski Minsky) Rosella Cornaviera, Keith Forde, Helen (Au) Hayward, Bruce Rivers Justice Nicholas P. Kasirer (Supreme Court of Canada) Louise Mailhot, Ad. E. (Faskens) Karine Joizil Lucie Lalonde, Louis Charette, Jean Perras Catherine La Rosa, Pierre Giroux (Tremblay Bois Mignault Lemay) Miville Tremblay, France Bilodeau, Stuart (Kip) Cobbett (UNLTD VR) Lise Verreault Justice Margaret E.L. Larlee, Pierre Castonguay (NB Legal aid) Catherine Lahey, Q.C.(Stewart McKelvey) Blair C. Fraser, Clarence LeBreton, Bridget Ryan, Normand G. Thériault Justice Wayne D. Cheverie (Supreme Court of PEI) Nancy E. Birt, QC (Birt McNeil)Krista J. MacKay, QC, Erin T. Mitchell (Dept. Minister of Justice) Nadine A. DeWolfe, Mary MacInnisAnn Sherman (Independent writer) Justice Patrick J. Duncan, Kathryn M. Dumke, QC (Dumke Law) Jack Townsend (Cox & Palmer) Alonzo Charles Wright (NS Public Prosecution) Dr. Garland (Gary) Brooks (St FX Psychology) Naiomi W. Metallic (Dalhousie Law) Philip J. Star (Pink Star Barro) Newfoundland and Labrador Nunavut Northwest Territories Yukon Tax Court of Canada Justice Charles W. White Gladys Dunne, Twila E. Reid (Stewart McKelvey) Derek P. Ford (Jewer & Ford) Remzi Cej, Cathy Follett, Madelyn Kelly Justice Bonnie M. Tulloch, Joseph Paul Murdoch-Flowers (legal aid) John M. Hickes, Eliyah Padluq Vacant Justice Ronald S. Veale, David Christie, Geneviève Chabot, Norah Mooney, George Filipovic, Jessica Lott Thompson, Anne Maje Raider Justice Randall S. Bocock (Tax Court of Canada)Michel Bourque (KPMG) Kimberley Brooks (Dalhousie Law) Nathalie Goyette, Virender Krishna
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.
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, 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.
Federal courts Appointments to the Federal Court and to the Federal Court of Appeal 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. Judges of the court are made up of eight puisne judges 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 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. 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.
Criticism of process The appointment process has been the source of some controversy in recent years, as appointments occur with no input from parliament 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.
Recent developments
Under Martin In response to the critics, Prime Minister Paul Martin 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 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, 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 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.
Under Harper