Q:How do judges get to be on the Supreme Court of Canada?
A:The process is unlike most other job hunts.
The Supreme Court was conceptually created in 1867, when Canada was under the British North America Act. It was not until 1876 that we got around to forming the court. If you are ever in Ottawa, it’s worth taking a tour of the majestic building that houses the highest court in Canada.
Until 1949, Canadian cases could still travel to London, England, and be heard by the Judicial Committee of the Privy Council. Since that time, the Supreme Court is the court of last resort for Canadians.
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In Canada, the governor general appoints judges to the Supreme Court. He makes the appointment, but is advised who to appoint by the government of the day. This is a federal process and the premiers and territorial leaders have no say.
Theoretically, the prime minister only has the power to recommend, but in fact his recommendations always make it to the court. This is by convention or practice. Similarly, there is a loose practice that allows different geographic regions of Canada to get their choice onto the court on a rotating basis.
There are nine seats at the court, and at any time, three judges must come from Quebec. Quebec uses the civil code, rather than Anglo-Canadian common law, so there is a need for representation from a distinct civil legal system.
While the judges strive for unanimity, a majority decision carries the day, and the court is often split. Those judges not agreeing with the majority are free to write dissenting opinions, expressing their minority views.
Different countries use different processes. The United States has an executive-led appointment process that is subject to Senate ratification. In France, an independent tribunal sits and oversees appointments. Australia’s process for top court appointees is similar to ours, but there is more consultation with the states and territories.
We may see the winds of change blowing across Canada. There has been increasing pressure to de-politicize the process of appointing top judges. There are two vacancies coming up, and a five-member ad hoc vetting committee of members of Parliament from different parties has been asked to come up with a short list. The prime minister has agreed that he will choose from this list.
This committee has been quoted as saying it is looking for merit appointments, “somebody who is knowledgeable in the law and who can work co-operatively with the other justices.”
Gender balance is a factor and being bilingual is a definite plus. As well, sometimes the expertise of the retiring judge is considered. If one judge has a strong background in criminal law, there is an effort to replace him or her with someone of similar strengths.
The process is not totally shrouded in mystery and tends to dictate that the best and brightest of the legal profession have a real shot at ascending to the nation’s top court.
Rick Danyliuk is a lawyer with McDougall Gauley LLP in Saskatoon. Contact him by e-mail at rdanyliuk@producer.com.
