Legal and Social Affairs Division
The Supreme Court of Canada was created by Statute in 1875 and since that time its membership and nomination process have evolved considerably.
It has been the final court of appeal for criminal cases in Canada since 1933, and the final court of appeal for civil cases since 1949. These are dates on which appeals to the Judicial Committee of the Privy Council in the United Kingdom were abolished.
Composition of the court
The Supreme Court Act stipulates that the Court shall consist of eight puisne judges and a chief justice, who shall hold office during good behaviour until the age of 75. (ss. 4(1) and 9).
Of these nine judges, three shall be from Quebec, to ensure expertise in civil law (s. 6). Tradition has it that, of the remaining six judges, three come from Ontario, two come from the Western provinces and one comes from the Atlantic provinces.
Section 5 sets out who can be appointed as a judge, while section 6 sets out additional conditions regarding the three judges from Quebec.
Thus, candidates are selected from among persons who are or have been a judge of a superior court of a province, including an appeal court, or from among persons who are or have been a barrister or advocate of at least 10 years standing at the bar of a province.
However, the three judges from Quebec are appointed from among the current judges of the Superior Court of Quebec or the Court of Appeal of Quebec, or from among the current advocates of at least 10 years standing at the Barreau du Québec. (Reference re Supreme Court Act, ss. 5 and 6, para. 70).
The composition cannot be altered unilaterally by Parliament. Such a change requires the unanimous consent of Parliament and the legislative assemblies of all the provinces (Constitution Act, 1982, para. 41(d)).
It is on this basis that the Supreme Court declared invalid section 6.1 of the Act. It stated that former members of the Barreau du Québec could be appointed to the Supreme Court under section 6 of the Act (Reference re Supreme Court Act, ss. 5 and 6, paras. 105 to 106).
The nomination process
While the Governor General holds the legal power under the Supreme Court Act to appoint justices, in practice, this power is exercised on the advice of the Prime Minister and Cabinet.
In 2004, Irwin Cotler, then Minister of Justice, appeared before the House of Commons Standing Committee on Justice, Human Rights, Public Safety and Emergency Preparedness to explain publicly for the first time the process for selecting Supreme Court Justices.
The minister explained that, in order to identify candidates, he consulted extensively with the legal community, as well as academics and organizations who wished to recommend a candidate for consideration.
He added that the assessment of candidates was primarily based on three main categories: professional capacity, personal characteristics, and diversity, so that the Court’s composition appropriately reflected the diversity of Canadian society.
The minister then consulted with the Prime Minister, and a recommendation for appointment was made to the Governor General.
Once the appointments of Justices Abella and Charron were announced in 2004, the Justice Minister defended the choices before an ad hoc committee composed of MPs and representatives of the legal community.
This process evolved over the course of subsequent nominations. In 2006, an advisory committee of members of Parliament was established to vet and create a short list of candidates. The final selection was made by the Prime Minister and Cabinet.
As of 2006, the nominee then appeared before an ad hoc committee of MPs where he or she was questioned in a public session. This hearing was for informational purposes only; the ad hoc committee did not have the power to veto the nomination. Nor was it permitted to ask the nominee questions about personal opinions on moral issues or potential future rulings.
This process of vetting by a committee of MPs followed by a public hearing was used for the nominations of Justices Rothstein (2006), Moldaver (2011), Karakatsanis (2011), Wagner (2012) and Nadon (2013). However, it was not followed in the case of Justice Cromwell (2008), who was formally appointed after the prorogation of Parliament.
Following the Supreme Court’s conclusion that the appointment of Justice Nadon was void ab initio in 2014 (Reference re Supreme Court Act, ss. 5 and 6, para. 6), the process was not followed in the subsequent appointments of Justices Gascon (2014), Côté (2014) and Brown (2015).
At present, it is not clear what process will be followed for the next nomination to the Supreme Court.
Pros and cons on the process
Those in favour of changes to the appointment process argue that formal guidelines or constraints on the process will enhance the perception of judicial independence. It would do so by lessening the danger of a judge being appointed on the basis of his or her perceived sympathies to the views of the ruling party.
A changed process could also allow for more input by Parliament, provincial legislatures and Canadians. This is a potentially important element, given that the Supreme Court hears matters of provincial law and rules on division of powers issues.
Those who oppose changes to the appointment process also focus on the need to protect judicial independence. Because the decisions of the Supreme Court should not be influenced by other branches of government or by general public sentiment, some feel public hearings could undermine judicial independence if they force judges to defend their decisions and ideologies to members of the legislature.
In short, those opposing changes are concerned with keeping the different branches of government separate and not making the judiciary answerable to the legislature.
Please refer to previous Hill Note on the topic from 2011
Appointments to the Supreme Court of Canada