Judicial appointments in Canada

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.[1] Committees are often composed of representatives of the federal and provincial governments, the legal profession, the judiciary, and the general public.[1]

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.[2] JAAC recommends a list of 3 or 4 candidates, far less than its federal counterpart.[3] 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.[3] Unlike other committees, the JAAC advertises openings and interviews candidates in person.[4]

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.

A committee of eight persons vets candidates in each region across Canada.[3] Each candidate is assessed as being "recommended" or "not recommended."[3] A third designation, "highly recommended" was eliminated in 2007, which critics say enhanced the government's ability to make patronage appointments.[3] 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."[3]

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.

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.

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.

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.[40]

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.[40]

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.

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 prior to his appointment.[40] The committee had no power to veto the nomination, which was simply to allow for questions from parliamentarians.[40] The Prime Minister maintained the final say on whom to recommend for appointment.[40]

In 2011, Harper again appointed two Supreme Court justices, Andromache Karakatsanis and Michael Moldaver, from a shortlist of 6 candidates unanimously approved by a multi-party committee of Conservative, Liberal, and New Democratic Party Members of Parliament.[41] They each later appeared before hoc parliamentary committees, although the committee had no authority to approve or deny the appointments.[41]

In 2013, Harper appointed Marc Nadon as a member from Quebec.[42] 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.[43] At the time, Chief Justice Beverley McLachlin 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.[44][45] The ICJ concluded that McLachlin deserved an apology from Harper, but none had been given as of July 2014.[46]