Judicial Appointment - Backgrounder

The Judicial Appointment Process in British Columbia and the Supreme Court of Canada
Backgrounder

Background Information - The Courts in British Columbia
The Canadian judicial system is organized under the provisions of the Constitution Act, 1867 [1], and authority over the judicial system is divided between the federal and provincial governments.  Under section 92(14) of the Constitution Act, 1867, the government of British Columbia is responsible for the “administration of justice” in the province, which includes “the constitution, organization and maintenance” of all of the courts in the province.  This means that the provincial government is responsible for the administration of all of the courthouses and court staff, as well as the establishment of the procedures to follow in civil cases.  It also means that provincial governments can establish provincial courts, appoint provincial court judges and pay the salaries of provincial court judges.  However, section 96 of the Constitution Act, 1867 provides that the federal government appoints the judges of the superior courts in each province.  Sections 99 and 100 provide that federally appointed judges may work until the age of 75 and that the federal government will pay their salaries.

In British Columbia, there are three different courts: the Provincial Court, the Supreme Court and the Court of Appeal.  The Provincial Court is the largest trial court in the British Columbia, with 44 courthouses and approximately 160 judges, including the Chief Judge, located throughout the province.  The Provincial Court is a statutory court, which means that the court was created by a provincial statute, the Provincial Court Act [2].  As stated above, the provincial government appoints judges to the Provincial Court and sets the salaries of Provincial Court judges.  The Provincial Court hears cases in four main categories:  criminal and youth criminal matters (formerly known as young offenders); family matters, but not divorce, adoption or division of family property cases; small claims cases (civil claims under $25,000.00); and traffic and bylaw cases.  Ninety-eight per cent of all criminal matters begin and end in the Provincial Court.

The Supreme Court and Court of Appeal are the province’s “superior” courts, which means that the judges of these courts are appointed by the federal government.  The federal government pays the salaries, pensions and allowances of the Supreme Court and Court of Appeal judges.  The Supreme Court is a court of general and inherent jurisdiction which means that it can hear any type of case, civil or criminal. It hears most appeals from the Provincial Court in civil and criminal cases and appeals from arbitrations.  The Supreme Court Act [3] sets out the powers and privileges of Supreme Court justices and makes provisions for the administration of the court.  Section 2 provides for the appointment of one Chief Justice, one Associate Chief Justice and 86 other justices.  However, as of July 2009 there are 106 judges because there are a number of semi-retired justices who are called supernumerary judges.  The Supreme Court judges sit in eight judicial districts and they travel around the province on circuit throughout the year.

The Court of Appeal is the highest court in the province. It hears appeals from the Supreme Court, from the Provincial Court on some criminal matters, and reviews and appeals from some administrative boards and tribunals.  Appeals from the Court of Appeal are heard by the Supreme Court of Canada.   The Court of Appeal Act [4] sets out the powers and privileges of Court of Appeal justices and makes provisions for the administration of the court.  Section 2 of the Court of Appeal Act provides for the appointment of the Chief Justice of British Columbia and 14 other justices.  However, as of July 2009, there are 24 Court of Appeal justices including the supernumerary judges.  The Court of Appeal sits regularly in Vancouver and Victoria, and from time to time in Kamloops and Kelowna.

Once appointed, all judges in all the courts across the country are “independent”.  Judicial independence means that a judge must hear and determine each case based on the law, evidence and argument before the judge, and not based on other external factors, such as the views of government or the media.  As well, judicial independence means that the judges are independent from each other.  This means that no judge (including the Chief Justices, the Associate Chief Justice and the Chief Judge) can tell another judge how to decide a case.

Appointment of Provincial Court Judges
The Provincial Court Act [5] governs the appointment of judges to the Provincial Court.  To be appointed to the Provincial Court, a person must be a lawyer in good standing with a provincial law society and have practiced law for a minimum of five years (although in practice, persons with less than 10 years’ practice are rarely appointed).  Lawyers interested in becoming a Provincial Court Judge must apply to the Judicial Council, a body established under the Provincial Court Act.  The Council consists of nine persons: three judges, two lawyers (representing the Law Society and the Canadian Bar Association), a judicial justice of the peace, and three lay people (non-lawyers). The Judicial Council secures an in-depth peer-referencing analysis prepared by a committee of lawyers, as well as references from judges who are familiar with the applicant's professional work.  Unlike the federal judicial appointment process, the Council interviews applicants who receive favourable reports in the referencing process. About one in ten applicants are approved by the Council to be included in a "pool" of approved applicants who are eligible for appointment. At any given time there tends to be only about 25 candidates around the province who are eligible to be appointed. They remain eligible for three years.

When a new judge is required, the Chief Judge recommends persons from within the pool. The Attorney General may accept the Chief Judge's recommendation, or select anyone else from the pool of approved candidates, but may not appoint anyone unless they are within the approved pool. The Attorney General's recommendation is taken to Cabinet who make the final decision through an Order in Council. The Chief Judge, not the government, determines where in the province a judge will preside, and in what sort of cases. As a matter of constitutional law, provincial court judges are appointed "during good behaviour", meaning their appointment cannot be terminated by the government.  A Provincial Court judge can only be removed from office if a judicial inquiry concludes that the Provincial Court judge because of some judicial misconduct is no longer fit for office.  Provincial Court judges can serve until they reach age 70.

Appointment of Superior Court Judges
The federal Judges Act [6] provides that a person interested in becoming a judge on a superior court must be a lawyer in good standing with a provincial law society and have practiced law for a minimum of 10 years, although typically those selected as judges have practiced law for longer than 10 years.  The majority of appointments to the Court of Appeal are current Supreme Court judges, although some people have been appointed directly to the Court of Appeal from practice as lawyers.

An interested and qualified person must complete an application form and send it to the Office of the Commissioner for Federal Judicial Affairs in Ottawa.  The Office was created in 1978 and its mandate is to “safeguard the independence of the judiciary and put federally appointed judges at arm’s length from the Department of Justice.”   The Commissioner acts on behalf of the Minister of Justice in matters relating to the appointment, age limit and salaries applicable to federally appointed judges. 

The Commissioner’s office has an appointments secretariat which administers 16 Judicial Advisory Committees who are responsible for evaluating candidates. The Judicial Advisory Committees are independent from the Minister of Justice and are responsible for assessing the qualifications for appointment of each applicant in a confidential process.  The Minister of Justice meets periodically with the chairs of all the Advisory Committees to exchange views concerning the operation of the appointment process.  Seven people sit on the Judicial Advisory Committee:  the Minister of Justice nominates three members of the public and the provincial or territorial Law Society, the provincial or territorial branch of the Canadian Bar Association, the Chief Justice or the province or territory and the provincial or territorial Attorney General or Minister of Justice each nominate one person.

The Judicial Advisory Committee assesses each candidate’s application and determines whether a candidate is “highly recommended”, “recommended”, or “unable to be recommended”.  The Committee presents its conclusions and the reasons for arriving at them to the Minster of Justice.  The Minister of Justice may consult further with members of the judiciary and the bar or of the public before he or she recommends to cabinet an individual for appointment as a superior court judge.

Appointment of Supreme Court of Canada Judges
The government of Canada established the Supreme Court of Canada in 1875 by an act of Parliament.  It is now governed by the Supreme Court Act.  The Supreme Court Act [7] provides that appointees to the Supreme Court of Canada must have been a judge of a superior court or a lawyer with at least ten years’ standing at a provincial bar.  Most of the justices have prior experience as trial and appellate judges, although one of the nine judges is typically a direct appointment; Mr. Justice Ian Binnie is the current member of the Supreme Court of Canada who was appointed directly from practice.  Section 6 of the Supreme Court Act dictates that three of the judges must come from Quebec.  Conventionally, the rest of court is made up of three judges from Ontario, two from the Western provinces, and one from the Atlantic provinces.

While there has historically been some consultation with the Canadian legal community regarding appointments to the Supreme Court of Canada, in 2004, in order to diffuse the criticism that the appointment process is overly secretive, an Interim Ad Hoc Committee was created to review the nomination of two possible candidates, Justices Rosalie Abella and Louise Charron, then both judges of the Ontario Court of Appeal.  The Interim Ad Hoc Committee was created on the recommendation of the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness, which also made other recommendations as to how the government could make the appointment process clearer to Canadians. That committee acted in a purely advisory capacity, and did not have the power to stop an appointment.  If the Interim Ad Hoc Committee had been given this power, it could conflict with s. 96 of the Constitution which gives the Governor General the power to make judicial appointments.  The Interim Ad Hoc Committee questioned the Minister of Justice about the candidates at a public hearing, thereby increasing public awareness and discussion, and encouraging a transparency of process.  However, at the conclusion of the process, the Interim Ad Hoc Committee complained that they were not given enough information about the appointees and that they were not given adequate time to prepare for the hearing. 

In 2006 the federal government announced that it would change the process for appointing judges to the Supreme Court of Canada.  The federal government created the Ad Hoc Committee to Review a Nominee for the Supreme Court of Canada.  The Ad Hoc Committee, whose members were drawn from all parties in the House of Commons, was directed to conduct a hearing during which committee members would be able to question the Prime Minister’s nominee.  The Ad Hoc Committee did not have the power to veto the nomination and was not permitted to ask the nominee questions about personal opinions on moral issues or possible future rulings.  On February 27, 2006, Mr. Justice Marshall Rothstein of the Federal Court of Appeal, the Prime Minister’s nominee to fill the vacancy created by the retirement of Mr. Justice Major, appeared before the Ad Hoc Committee.  On March 1, 2006, Mr. Justice Rothstein was appointed to the Supreme Court of Canada.

In May 2008, when Mr. Justice Michel Bastarache announced his intention to retire from the court, the federal government stated that the parliamentary review process that had been used when Mr. Justice Rothstein was appointed would be used again.  However, the October 2008 federal election and the instability of the minority government that followed resulted in the nomination process being suspended.  On March 30, 2009, the federal government announced that Mr. Justice Thomas Cromwell would be appointed to the Supreme Court without appearing before the Ad Hoc Committee.  The federal government was criticized for bypassing the review process it had created and had stated would be followed.  The federal government responded by stating that the Supreme Court, which had been operating with eight judges rather than its full complement of nine since July 2008, urgently needed its full complement and that the parliamentary review process would result in an unacceptable delay in filling the longstanding vacancy.  The federal government also stated that future nominees would be required to appear before the Ad Hoc Committee.

Appointing Judges versus Electing Judges
Common law judges have historically been appointed, not elected.  The main concern with electing judges is that an election could compromise judicial independence.  Judicial independence is a right entrenched in the Charter of Rights and Freedoms [8] as one of the “principles of fundamental justice” provided for by section 7 and further guaranteed in section 11(d) which affords an individual charged with an offence the right “to be presumed innocent until proven guilty according to law in a fair and public hearing by an independent and impartial tribunal.”

Although some American states have an elected judiciary, there are many reasons to prefer an appointment process to an election process.  Potential judges may not want to risk running for election to a judicial position because a rejection could have a detrimental effect on their legal practices.  Requiring judges to stand for re-election would make it difficult for judges to make decisions that are unpopular, yet legally correct.  The logistics of campaigning creates many problems.  Often, candidates acquire debt and spend large amounts of time campaigning.  If a candidate is running for re-election, he or she may spend valuable time campaigning that could be spent adjudicating.  Subjecting the judiciary to elections would likely attract the same kinds of deals, incentives, and trade-offs that are associated with elections for politicians.

In the United States, there is an ongoing debate about the impact that campaign money has on judicial decisions.  Recently, the Supreme Court of the United States released a decision in a case which involved an appeal court justice who had received significant campaign contributions from the president of a company who was appealing a lower court decision.  The appeal court judge had been asked to remove himself from the case, but had refused and went on, ultimately, the grant the appeal.  The U.S. Supreme Court was asked to decide whether the appeal judge should have removed himself from the case.  The U.S. Supreme Court ruled that the appeal judge should have removed himself because of the perception of bias.

The appointment process has some disadvantages, as well.  In 1984, the Canadian Bar Association released a publication identifying ten problematic aspects of the appointment process as it then existed (before the institution of the current process of application and independent vetting by the Judicial Advisory Committees):

1. the public lacks knowledge about the appointment process generally;
2. the public perceives that appointments are often politically motivated;
3. in some provinces politics have played too large a role in appointments;
4. regional ministers of justice (attorneys general) hold an inordinate amount of influence over the federal Minister of Justice;
5. the special advisor’s role is too large;
6. there is a lack of consistency in the consultation process engaged in by the Minister of Justice and the attorney generals and chief justices;
7. information about candidates is often inadequate;
8. the provincial law societies are often not involved enough;
9. the process is lengthy and vacancies are often left open for months while the process is being completed; and
10. there is evidence of uneven competence on the bench.

The judicial appointment process was revised in 1988 and some of the concerns identified in the report, including lack of consultations, potential for political interference and delays in the review process were addressed.

It is important to note that since the appointment of judges is set out in the Constitution, changing to an electoral system or a system which permitted the Ad Hoc Committee to veto the Prime Minister’s nomination or appointment would require a constitutional amendment.

Term of Appointments
The federal Judges Act provides that federally appointed judges may serve until they reach the age of 75; the Provincial Court Act provides that Provincial Court judges must retire at the age of 70. 

As judges are independent, a judge could only be removed from office in instances of serious misconduct.  For less serious misconduct, the judge may be reprimanded or disciplined by the federal Canadian Judicial Council (federally appointed justices) or the provincial Judicial Council (provincially appointed judges).  Otherwise, a judge can be assured that he or she will not lose their position for any decision made in the court, even if the decision offends the public, the media or politicians.  This is part of the notion that a judge must be able to act independently of outside influences. 

Additional Sources
More information about judicial appointments can be found in the following sources:

Office of the Commissioner of Federal Judicial Affairs

Standing Committee on Justice Human Rights, Public Safety and Emergency Preparedness:  Improving the Supreme Court of Canada Appointments Process (Ottawa:  May 2004)

Interim Ad Hoc Committee:  Report on the Appointment of Supreme Court Judges (Ottawa:  August 2004)

The Canadian Bar Association:  Supreme Court of Canada Appointment Process (Ottawa:  2004)

The Canadian Judicial Council

The British Columbia Judicial Council

Footnotes

[1] Constitution Act, 1867 (U.K.) 30 & 31 Vict., C. 3 reprinted in R.S.C. 1985, App. II, No. 5
[2] Provincial Court Act, R.S.B.C. 1996, c. 379
[3] Supreme Court Act, R.S.B.C. 1996, c. 433
[4] Court of Appeal Act, R.S.B.C. 1996, c. 77
[5] Judges Act, R.S.C. 1985, c. J-1, s. 3.
[6] Office of the Commissioner for Federal Judicial Affairs <http://www.fja-cmf.gc.ca/home-accueil/index-eng.html>
[7] Supreme Court Act, R.S.C. 1985, c. S-26
[8] Caperton v. A. T. Massey Coal Co., Inc., No. 08-22, 8 June 2009.