Judicial appointments in Canada

PROVINCIAL COURTS

Each province or territory has its own advisory committee and these committees then prepare a detailed document of recommendations. Such committees comprise of people who represent the federal and provincial government, or who are from the legal fraternity or simply the people who are good Samaritans who work for the welfare of the general public. In Ontario for instance, the “Judicial Appointments Advisory Committee (JAAC)” comprises of a total of 13 members. This committee recommends 3 to 4 names. Unlike any other system, JAAC issues advertisements and interviews all the candidates in person.

SUPERIOR AND FEDERAL COURTS

A board of trustees of eight people vets applicants in every locale across Canada. Each individual is evaluated and then it is decided whether he or she shall be “recommended” or “not recommended.” A third assignment, “highly recommended” was rejected in the year 2007. Some believe that this elimination was the required catalyst which improved the public authority’s capacity to make supporting and favorable appointments. In government’s opinion, the said framework focuses on the merit of such people, and the huge pool permits the public authority “to address the specific requirements of the court being referred to.”

SUPREME COURT OF CANADA

Eligibility criteria for being a judge:

The Canadian Supreme Court Act specifies the eligibility for a person to be a judge at the Supreme Court of Canada. The bench at the Court consists of a total of eight “puisne” judges and one Chief Justice. The potential candidates should either have experience of being a judge at a superior court for a minimum duration of ten years or a lawyer for the same duration in their province’s bar. Further, out of these eight judges, it is mandatory that three of these come from Quebec, three come from Ontario, two from Western Canada and one from Atlantic Canada. These appointments are largely based on the recommendations of the cabinet led by the Prime Minister. Recently, the same power is augmented by establishing an ad hoc advisory committee which when there is a vacancy, reviews a total of seven nominees listed and finalized by “The Federal Minister of Justice”. Out of those seven, three are shortlisted from which the Hon’ble Prime Minister of Canada selects one name for further nomination. Review of this final power also seems possible now as in the year of 2006, an independent committee was constituted for the sole purpose of interviewing, assessing and reviewing the shortlisted candidate before he is appointed.

SUPPORT AND PROBLEMS WITH THE PROCESS

There has been significant criticism overtime on the ground that there is absolutely no part played by the parliament or the opposition political parties, not even the part to vote on the names. The problem with the above stated appointment system is that the prime Minister has sole discretion to choose the candidate which means that he can choose the candidate who most closely resemble his own ideologies and that person who he knows will always support the government’s stance. This corroborates further to the augmentation of partisan, judges who are biased and believe less in adjudication and more in activism etc. On the other hand, supporters present arguments in favor of this system by stating that quiet appointments sans parliamentary interference not only ensures independence of the judiciary but also results in better choices made by the judges. Supporters argue that this way, the entire process of a fine institution of justice is not politicized.

RECENT DEVELOPMENTS

  1. Under Martin: After facing such criticism as mentioned above, Prime Minister Paul Martin in the year 2004 decided to make a few changes in the appointment system. He was the one to bring the concept of a special parliamentary committee for screening the nominees and reporting whatever findings the committee had to the parliament. However, no change was brought in that could overpower the recommendation process or simply block it. It was the “Minister of Justice” who was the first “Minister of Justice” to appear before the “House of Commons Standing Committee on Justice and Human Rights” with the objective of explaining the entire procedure for appointing and selecting the judges. The same was done before the general public and was done for the first time. However, when it was the actual time of listing out names in accordance with that procedure, the names of “Justices Abella and Charron” were listed and forwarded but shortly the parliament stood dissolved because of which the committees were not formed. After that, the government effectively made a declaration that the assessment and reviewal of nominees would be done by a special parliamentary committee, which would then make and forward a report to the Parliament. Thereafter, an ad hoc parliamentary committee was formed for the purposes of assessing the credibility of “Abella and Charron’s appointments”. The committee also comprised of two members of the “Canadian Judicial Council” while the committee members representing the “Conservative Party of Canada” refused to sign their committee’s “final report”, and referred to the proposed process as “insufficient.” In and around April 2005, the Liberal government came up with a different proposal for transforming the entire selection process. According to them, “the advisory committee” would comprise of federal nominees who would choose three candidates from the list of seven names prepared by the Minister of Justice and their main task would be to cut the list short to three candidates. It is then that the Hon’ble Prime Minister would select one name out of the three names which would then be put forward before the Governor General. It is a recognized rule that the advisory committee every time would consist of a “member of Parliament from every 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”. Every time a vacancy shall arise in the Supreme Court, a new advisory committee would be created and the old one would dissolve automatically.
  2. Under Harper: In February 2006, the Hon’ble Prime Minister Stephen Harper used an “Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada” for conducting an interview of Marshall Rothstein just before his appointment. The Ad Hoc committee possessed absolutely no power to nullify the nomination, which was just formed to permit and answer the questions from parliamentarians. The final say shall always be with the Prime Minister’s office. It was in the year 2011 that Harper appointed Justice Andromache Karakatsanis and Michael Moldaver at the Supreme Court from a list of 6 candidates. The same was unanimously agreed and approved by a committee involving multiple committees i.e., “Conservative, Liberal, and New Democratic Party Members of Parliament”. Later, all showed up before Ad hoc parliamentary panels, despite the fact that the advisory group had no position to favor or deny the arrangements. It was in the year 2013 that PM Harper selected Marc Nadon for appointment from Quebec. There was a discussion about the process of appointment, and the national government thought it best to leave issues of constitutionality and legality of the arrangement to the Supreme Court of Canada. In “Reference Re Supreme Court Act”, Sections 5 and 6, the Hon’ble Supreme Court of Canada nullified the process, citing the reasons that he didn’t meet the qualification standards given in the Supreme Court Act. After which, Chief Justice Beverley McLachlin had a talk with Harper on the fitness of Nadon’s arrangement. Harper instead did not accept the call and censured McLachlin for settling on the decision. Harper’s remarks were heavily criticized by the legal fraternity and on a protest application, the case was forwarded to the “International Commission of Jurists” in Switzerland. The Court presumed that McLachlin merited a statement of regret, however none had been given starting at July 2014.

TERM AND DISMISSAL OF JUDGES

All judges who are appointed by the federal authority are referred to be under federal control and are very much eligible for being on the bench until they are of 75 years of age. At the same time, there are some provincial and territorial positions where judges serve on the bench until they are of 70 years of age.

When it comes to the removal procedure, it is by far very rarely exercised. The removal procedure is bifurcated into two, first for the federally appointed judges and second for the provincial/territorial judges. For the federally appointed judges, this power is bestowed upon “The Canadian Judicial Council” for the purpose of investigating into different complaints. It is then that the recommendation of removal goes from the Council to the Minister of judge. For doing so, the Minister needs approvals from the “House of Commons” as well as the “Senate” before sending such recommendation. For the provincial/territorial judges, the process is similar but the same recommendation of removal needs to come from the provincial or territorial cabinet.

COMPARISON

  • Canada v. USA: The power to appoint judges to the Hon’ble Supreme Court of USA lies in the hands of the executive branch of the government, just like in the case of Canada. The difference lies in the confirmation. Confirmation of the names must come from the US Senate which is part of the legislative branch of the Us government. This means that the Senate has all the rights and powers to hold the names and reject or even block the appointment. The same confirmation proceedings involve an extremely tiring review process in which the Senate Judiciary Committee, if it wishes to do so, can put questions to the President’s nominee directly. It is to be noted that there exists no specific set of rules for the President to choose a nominee. The President may require the appointing of any such lawyer for whom Senatorial confirmation could be obtained. Here lies the difference as in Canada, it is important for the Prime Minister to meet certain eligibility while he selects the nominee to the Canadian Supreme Court.
  • Canada v. Republic of France: Again, just like Canada and USA, the power to make such appointments to its highest court, Court de Cassation, lies with the executive branch of the government, specifically, the French President. However, the process is more transparent than Canada and USA since the process is overseen by an independent body formed especially for this purpose. This body is known as the Conseil Superieur de la Magistrature, which ensures that a complete review and interview procedure is followed with all the Court de Cassation appointees and then a recommendation is made to the French President. This concept strengthens the independence of judiciary and foresees that there is quality control in the appointment process.
  • Canada v. Australia: Australia’s Governor General has similar position and powers as that of Canada’s Governor General and he also has the power to make such appointments. That is just a signatory power and the real power stays with the Australian Prime Minister who consults with the Cabinet, specifically the Australia’s Attorney General. Since 1979, the government Attorney General is required to talk with state and regional Attorneys General prior to making a determination. State and regional investment, in any case, is just consultative; they have no capacity to obstruct government arrangements. There are not many necessities for turning into an adjudicator on the High Court, other than the way that an applicant must be under the obligatory retirement age of 70, have been an appointed authority on a government, state, or regional court, or been a specialist for in any event five years, either with the High Court itself or with a state or regional Supreme Court.