The federal government appoints the judges of the SUPREME COURT and the FEDERAL COURT, and under s96 of the Constitution Act it also appoints judges to some provincial courts. Sometimes referred to as "section 96 judges," they sit in the provincial Supreme Court or Court of Appeal or in equivalent courts such as the Court of Queen's Bench, the Superior Court (in Québec) or the General Division of the Court of Justice (in Ontario). Provincial or municipal governments appoint judges of provincial lower courts, magistrates, justices of the peace, coroners, sheriffs and other officers of provincial courts. Provincially appointed judges deal with both provincial and federal legislation.
Role of the Judiciary
Whether it presides over criminal prosecutions or civil lawsuits (see CIVIL PROCEDURE), the role of the judiciary is to serve as an impartial arbiter. The court's impartiality flows from the essential feature of our judicial system - independence of the judiciary. Although the judiciary is sometimes regarded as equal to the executive and legislative branches of government, and although appointment, removal and remuneration of judges are dependent upon the other branches, the quality of justice to which Canadians are accustomed can only be maintained if an independent judiciary is jealously guarded. The notion of judicial independence has been tested in cases where provincial court judges have refused to rule on various cases, claiming they are not independent of the provincial government, which sets their salaries and working conditions.
The Supreme Court of Canada (in the Valente case) held that the 3 main principles of an independent judiciary are security of tenure, financial security and independence in matters of court administration where those matters bear directly on the judicial decision-making process. There have been several recent cases where wage cutbacks for provincial court judges have been challenged as an interference with their independence for reason of endangering their financial security. In 1981 and again in 1995, the Canadian Judicial Council (a body mandated by the federal Judges Act) released commissioned reports on the state of judicial independence in Canada (Masters in Their Own House, 1981, and A Place Apart: Judicial Independence and Accountability in Canada, 1995).
Appointment of Judges
The Constitution Act and the federal Judges Act provide the basis for the appointment, removal, retirement and remuneration (including matters such as pension) of federally appointed judges. Similar provisions contained in various provincial enactments, which vary to some extent from province to province, exist for provincially appointed judges. Most federal appointments are made by the minister of justice after Cabinet consultation and approval, but some (eg, to the Supreme Court and to the various chief and associate chief justiceships and judgeships) are made by the prime minister, again after Cabinet consultation and approval.
Prospective federal appointments are now reviewed and rated by the provincial or territorial judicial appointment committees. Each committee consists of a nominee of the provincial or territorial law society, a nominee of the provincial or territorial branch of the Canadian Bar Association, a puisne judge of one of the federally appointed courts, nominated by the chief justice, a nominee of the provincial attorney general or territorial minister of justice, and a nominee of the federal minister of justice, the latter of whom must be a lay person. These committees were established, and later refined, after major reviews of the judicial appointment process were conducted by the Canadian Bar Association and the Canadian Association of Law Teachers during the 1980s. Previously, prospective federal appointments were reviewed only by a Judicial Appointments Committee of the Canadian Bar Association. Provincial appointments are made by the attorney general of the province, after provincial Cabinet consultation and approval. Regarding provincial appointments, in most provinces the attorney general appoints a judge only after consideration of the application by a provincial judicial council (also containing a broad representation of members of the legal profession, the judiciary and the public).
Federally appointed judges must be lawyers who have been members of a provincial bar for at least 10 years. Although "horizontal" appointments from bar to bench have been traditional, judges are now frequently elevated from a lower to a higher court. The composition of the judiciary is changing with the recent appointment of women (in June 1987 Alice Desjardins, a member of the Québec Superior Court since 1981, was the first woman named to the Federal Court of Appeal), younger persons, academics and others. Provincially there is no minimum requirement of 10 years at the bar, and other eligibility rules vary among provinces. In some provinces prospective judges must have been members of the bar for 5 years, while in others they need not even be lawyers. Many so-called police magistrates are retired members of national or local police forces. However, even in provinces where judges need not be lawyers, only lawyers are now appointed.
Tenure of Judges
Federally appointed judges hold office during "good behaviour" and can be removed only by Joint Address of the House of Commons and the Senate. Under the federal Judges Act, however, matters not constituting good behaviour are given broad definition to include conditions such as senility. The Judges Act also created the Canadian Judicial Council, comprising the various federally appointed chief justices and associate chief justices, whose president is the chief justice of Canada.
The Judicial Council provides continuing education for federally appointed judges, makes recommendations to the minister of justice following investigation and review (by itself or by a committee it appoints to conduct a review in a particular case) of complaints against them, and recommends, when appropriate, their removal. While no federally appointed judge has been removed this way, some have resigned in the course of or under the threat of the invocation of this impeachment process. Similar but varying guidelines for judicial behaviour exist for provincially appointed judges. Some provincially appointed judges have been removed by an impeachment process which in certain provinces follows investigation and review by a provincial judicial council similar to its federal counterpart. Judges have been disciplined or removed for the commission of crime and for moral turpitude.
Federally appointed judges hold office until their mandatory retirement at age 75 if they are serving on the Supreme Court, the Federal Court or a provincial superior court, and at age 70 if they are serving on a county or district court, although, there are very few of those courts remaining. After they have served 15 years on the bench and have reached the age of 65 or more, or, in the case of superior court judges, after they have served 10 years on the bench and have reached the age of 70, they can partially retire or go "supernumerary," sitting on cases from time to time. The retirement age of provincially appointed judges (usually age 70) is set out in statutes creating the provincial courts.
Politics and the Judiciary
The process of judicial appointment has always been surrounded with secrecy, which has perpetuated the belief that political considerations influence the appointment of judges. It is widely held that to become a judge it is beneficial to be politically affiliated with the party in power - a fact generally regarded by the public in a somewhat negative way. However, a person should not be disentitled from a judicial appointment because of past political affiliation. This matter became the subject of public debate during the 1984 federal election following a spate of PATRONAGE appointments by the outgoing government. Since the early 1970s until 1984, all federal judicial appointments were externally reviewed by the Judicial Appointments Committee of the Canadian Bar Association. This review served as a buffer against the usage of judicial appointments as political patronage. This procedure was not followed in a 1984 appointment. The contoversy that followed led to the major reviews studying the appointments process, described above, and the subsequent changes that ensued.
The present review process by the provincial judicial appointment committees does not, however, guarantee that the appointment process is immune from the realm of politics in that the final appointment is made, from a list of approved candidates, by the minister of justice (or, in some instances, by the prime minister) after consultation with the Cabinet.
As a generalization, it may be said that the appointment process is far less politicized now than it was in the past. This is especially true of appointments to the Supreme Court. On the other hand, other nonpolitical factors have entered the appointment process (such as gender, language, geography and ethnicity) in order to ensure that the judiciary consists of qualified persons who reflect the heterogenous nature of Canadian society.
Most newly appointed judges are persons trained and experienced in the law. A great deal is expected of them by society, yet they possess no superhuman qualities. In return for special legal and ethical constraints imposed upon them, society provides them with status, prestige and trust. Because they are also entrusted with the ultimate responsibility of adjudicating personal, sensitive, delicate and emotional disputes as well as resolving the major social, economic and occasionally political issues that arise in some legal contexts, the judiciary helps mold the social fabric governing our lives.
Author GERALD L. GALL
Links to Other Sites
Department of Justice Canada
Answers to your questions about Canada's justice system may be as close as the online "Resource Centre" at this Department of Justice Canada website. Features authoritative information about Canadian law, the judicial process and the federal administration of justice.
Supreme Court of Canada
The extensive website for the Supreme Court of Canada provides access to the Court's online library catalogue, biographies of Supreme Court Judges, an overview of Canada’s judicial system and related information.
You and the law - Community Legal Information on the Web
An extensive listing of websites providing general legal information that may be of interest to Canadians. From University of Toronto’s Bora Laskin Law Library.
Indepth: The Supreme Court of Canada
An overview of the history and present day activities of The Supreme Court of Canada. Check out the links to multimedia news stories about individual justices and issues concerning the Supreme Court. From the CBC.
Canadian Judicial Council
Web site of the Canadian Judicial Council. The Council’s core mandate is to promote Efficiency, Uniformity and Quality in Canada’s justice system.
Glossary: Legal Terms
A brief glossary of legal terms from the website for the website for the Courts of Nova Scotia.