Canada's Supreme Court Appointment Process

Canada's Supreme Court Appointment Process

By Tiana Khan

Introduction

The Supreme Court of Canada is the uppermost court in Canada and also the final Court of Appeals in the Canadian justice system and as a result, plays an essential role in the improvement of the laws in Canada.

The selection of Judges for the Supreme Court of Canada is an important process and the criteria for the appointment of Judges is a prescribed process that is set out in the Supreme Court Act, R.S.C. 1985, c. S 26, as follows:

In order to be eligible for appointment to the Supreme Court of Canada, a candidate must be:

(1) a current judge of a superior court of a province, including courts of appeal;

(2) a former judge of such a court;

(3) a current barrister

Section 96 of the Constitution Act, 1867 gives the Governor-General as the representatives of the Queen the responsibility for the appointment of judges to the Supreme Court of Canada. As part of a convention, the Prime Minister of Canada makes the selection of the candidate and recommends to the Governor-General for an appointment. This has been the practice since independence.

This paper aims to look at the old process for appointment of Supreme Court Judges in comparison the new process, to highlight the strengths and weakness of each.

The Old Process

Over the years, there has been a lot of variation in the process for appointment of Supreme Court Judges. However, reform to the appointment process began when Paul Martin became Prime Minister in late 2002 and included the reform of the Supreme Court appointment process part of his Democratic Action Plan. From 2002 to 2011, the appointment process varied from who was consulted, to who sat on the review committee, to who appeared before the review committee, to the decision to make information public or not, among other

In the old process, the Minister of Justice and the Prime Minister are the ones accountable for justification of the appointment of the preferred candidate since they are the ones that select the candidate from the short list provided by the panel. Since 2004, there have been six sets of Supreme Court appointments; however, only two provided some accountability on behalf of the Prime Minister. What is more common than providing an explanation for the appointment, is the mere introduction of the selected candidate. This weakness has increased the public’s suspicion on the legitimacy of the process. It gave the impression that if the Ministers were not answerable for the selection of the candidate then they are at liberty to choose whomever they