Backgrounder

Reform of the Supreme Court Appointments Process

The Supreme Court of Canada is Canada's highest court. It is the final general court of appeal, the last judicial resort for all litigants, whether individuals or governments. Once appointed, judges act independently and without favour.

The constitutional authority for the appointment of Supreme Court judges rests with the executive branch of the federal government by way of Order in Council appointment, and the executive remains responsible and accountable for the exercise of this important power.

While the process by which Supreme Court of Canada justices have been chosen in the past has resulted in the selection of judges of the greatest distinction and ability, the Government of Canada is committed to putting in place a new process for appointing Supreme Court judges to ensure greater transparency, openness and parliamentary involvement.

On December 12, 2003, Prime Minister Paul Martin said that democratic reform and parliamentary involvement is a top priority for the Government of Canada. As part of this commitment, the Government consulted the Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness on how best to implement prior review of appointments of Supreme Court judges.

On May 10, 2004, the Standing Committee tabled its report. The majority of the committee recommended that an Advisory Committee be established as required for the purpose of filling vacancies on the Supreme Court of Canada as they arise. The Advisory Committee would assess potential candidates and provide a short list to the Minister of Justice.

On October 29, 2004, the Minister of Justice wrote to Standing Committee, advising that the Government supported the establishment of an Advisory Committee. He indicated that the Government supported the view taken by the majority of the Standing Committee that a number of matters needed further study and consideration.

The insights gained from the Standing Committee's report underpin the Government's Proposal to Reform the Supreme Court of Canada Appointments Process, which the Minister presented to the Standing Committee on April 7, 2005. The revised process, which was informed by extensive consultations with lawyers, judges, academics, provincial legislators and others, involves four key stages:

1. The Minister of Justice will consult Chief Justices, provincial Attorneys General and leading members of the legal community, and will invite public input, in order to identify five to eight candidates to be assessed by the Advisory Committee.
2. The Advisory Committee through a range of consultations and evaluations respecting relevant experience and expertise, and a paper review (including CVs, judgments and articles), will assess the candidates based on a public protocol of merit-based criteria, in order to generate an unranked short list of three candidates.
3. The Minister of Justice and the Prime Minister will complete their consultations before the Prime Minister recommends to the Governor-in-Council an appointment from the short list.
4. The Minister will appear before the Standing Committee following the appointment to explain the process and the qualifications of the candidate selected.

The Advisory Committee would be composed of one nominee from each political party with official status in the House of Commons, one retired judge, one nominee of the provincial Attorneys General, one nominee of the provincial law societies and two individuals who are neither judges nor lawyers.

To be eligible for appointment to the Supreme Court of Canada, a candidate must be or have been a judge of a superior court of a province or territory, or a barrister or advocate of at least ten years' standing at the bar of a province or territory. In view of the long-standing practice of identifying candidates from the region where the vacancy originated, a practice which has been adopted in the new appointments process, only candidates from Alberta, Saskatchewan, Manitoba, the Northwest Territories and Nunavut will be considered, as part of the process to address the vacancy created by the retirement of Justice John Major.

In his April 7, 2005 presentation to the Standing Committee, the Minister underlined that after spending more than a year considering the wide range of views on this issue, the Government was satisfied that the new process represented a very delicate and careful reconciliation of all of these perspectives. It was open to suggestions on how this proposal may be refined, but – in view of the extensive discussion and debate on this issue – was prepared to move forward with the new process.

On April 12, 2005, the Standing Committee adopted a motion expressing disappointment with the new process and requesting that the Government return to the Standing Committee with a revised process by the end of June 2005. On April 22, 2005, the Minister advised the Standing Committee that he was prepared to entertain modifications arrived at by the Standing Committee as a whole. However, any alternative proposal would need to be presented to the Government by the end of May, given the anticipated retirement of Justice Major and the goal of ensuring the Court continues to sit with a full complement of judges. No alternative proposal was forthcoming.

On August 2, 2005, the Minister was advised of the resignation of Mr. Justice Major, to be effective December 25, 2005.

-30-

Department of Justice
August 2005