The Supreme Court of Canada was created by statute in 1875. This HillNote describes the evolution of the membership and nomination process for Supreme Court justices over the years.
Role of the Supreme Court
The Supreme Court of Canada acts as a general court of appeal for Canada, deriving its authority from section 101 of the Constitution Act, 1867 and section 3 of the Supreme Court Act.
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 the 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 a chief justice and eight other judges, who shall hold office during good behaviour until the age of 75.
Of these nine judges, three shall be from Quebec, to ensure expertise in civil law and to represent Quebec’s “distinct legal traditions and social values” (Reference re Supreme Court Act, ss. 5 and 6, para. 49). By tradition, of the remaining six judges, three come from Ontario, two come from the Western provinces and one comes from the Atlantic provinces.
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 lawyer of at least 10 years standing at the bar of a province.
However, in 2014, in Reference re Supreme Court Act, ss. 5 and 6, the Supreme Court held that 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 lawyers of at least 10 years standing at the Barreau du Québec (para. 70).
The composition cannot be altered unilaterally by Parliament. Such a change requires the adoption of resolutions of the Senate and the House of Commons, and of the legislative assemblies of all the provinces (Constitution Act, 1982, para. 41(d)).
Prior Nomination Processes
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 described the consultation process involved and the criteria for assessing candidates, which fell within three main categories: professional capacity, personal characteristics and diversity.
After the appointments of Justices Abella and Charron were announced in 2004, the Minister defended the choices before an ad hoc committee composed of members of Parliament (MPs) and representatives of the legal community.
This process evolved over the course of subsequent nominations. Prior to the nomination of Justice Rothstein in 2006, an advisory committee including MPs from different parties was appointed to vet and create a short list of candidates. The final selection was made by the Prime Minister and Cabinet. Justice Rothstein then appeared before an ad hoc committee of MPs where he 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.
The process of vetting by a committee of MPs followed by a public hearing was subsequently used for the nominations of Justices 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, nor for the nominations of Justices Gascon (2014), Côté (2014) and Brown (2015). Prior to the appointment of Justice Gascon, the Supreme Court concluded that the appointment of Justice Nadon was void at the outset (Reference re Supreme Court Act, ss. 5 and 6, para. 6).
The New Nomination Process
In 2016, the government introduced a new process allowing qualified candidates to apply for a Supreme Court appointment through the Office of the Commissioner for Federal Judicial Affairs.
Under the new process, the non-partisan Independent Advisory Board for Supreme Court of Canada Appointments (the Board) actively seeks out candidates, reviews applications, and submits a non-binding shortlist to the Prime Minister, who then selects the final nominee.
As set out in its terms of reference, the Board consists of three members appointed by the Minister of Justice, at least two of whom must be non-lawyers, and four members appointed by legal organizations, including two practising lawyers, a retired superior court judge, and a legal scholar. Unlike in previous processes, it does not include any parliamentarians.
The Board is required to submit a public report on how it carries out its mandate. The questionnaire and assessment criteria used by the Board, and some of the questionnaire answers provided by the selected nominee, are also made public.
Once a nominee is selected, the Minister of Justice and the Chair of the Board appear before the House of Commons Standing Committee on Justice and Human Rights to explain the process and the final decision.
The nominee also participates in a public question and answer session with MPs and senators, including a representative of every political party with at least one seat in the House of Commons. As in the previous process, this session is for informational purposes only, and questions about matters such as future rulings are not permitted. The views of parliamentarians can inform, but do not bind, the Prime Minister’s final decision.
The new process established in 2016 was used to appoint Justices Rowe (2016), Martin (2017) and Kasirer (2019). In the latter case, the composition of the Board was adapted to reflect the fact that the nomination was for one of the Quebec seats on the Court. The 2016 process will be used again in 2021 to replace Justice Abella, who is retiring from the Court as of 1 July 2021.
Diversity on the Court
In recent nomination processes, much attention has been paid to the issue of diversity on the Court. The assessment criteria used since 2016 include the need to ensure that members of the Court are “reasonably reflective of the diversity of Canadian society.”
In recent years, many commentators have called for the appointment of an Indigenous justice. There have also been calls for better representation of visible minorities, especially considering the Black Lives Matter movement. At the same time, other diversity considerations related to regional representation, language and gender have also been at play—sometimes in conflicting ways, according to media commentary.
While the 2016 appointment process was opened to candidates from across Canada, the Prime Minister ultimately adhered to the conventions of regional representation by appointing a justice from Atlantic Canada. Subsequent processes have been restricted to candidates from particular regions.
In addition, the new process has consistently required appointees to be functionally bilingual in French and English. Recent appointments have also maintained the gender balance between women and men on the Court.
Authors: Robin MacKay and Maxime Charron-Tousignant, Library of Parliament
Revised by: Dana Phillips, Library of Parliament
Categories: Government, Parliament and politics, Law, justice and rights