Frequently Asked Questions
Why is the Government changing the way that Supreme Court of Canada judges are appointed?
The Government believes that Canadians’ well-founded confidence in our highest court will be reinforced by a selection process that is consistent with the independence of the judiciary while embodying the principles of openness, transparency, and accountability.
The Government is acting on its commitment to engage with all parties in the House of Commons to ensure that the process of appointing Supreme Court of Canada Justices is open, transparent, and sets a higher standard for accountability.
What is the new process for appointing Supreme Court of Canada judges?
The new process provides greater certainty, openness, independence, and objectivity for filling vacancies on the Supreme Court of Canada. Its key feature is a seven-member independent, non-partisan Advisory Board, which is tasked with identifying suitable candidates for appointment.
The Advisory Board will both receive and proactively seek out applications from interested candidates. Once the application period is over, it will consider applicants and develop a shortlist of three to five names. In assessing candidates, the Advisory Board will be guided by specific criteria that have been made public and which reflect the Government of Canada’s commitment to ensure that Supreme Court of Canada nominees are jurists of the highest calibre, functionally bilingual, and representative of the diversity of this great country.
While the Advisory Board is undertaking its work, the Minister of Justice will appear before the House of Commons Standing Committee on Justice and Human Rights in order to explain the selection process that will guide the work of the Advisory Board.
Once the shortlist is finalized, the Minister of Justice will consult with the Chief Justice of Canada, relevant provincial and territorial attorneys general, relevant Cabinet ministers, opposition Justice Critics, as well as members of both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs.
Based on these consultations and the Minister of Justice’s recommendation, the Prime Minister will choose the nominee and publicly announce his or her name. The Minister of Justice and the Chairperson of the Advisory Board will then appear before the House of Commons Standing Committee on Justice and Human Rights to explain why the nominee was selected.
To further meet the government’s commitment to transparency, members of the House of Commons Standing Committee on Justice and Human Rights, the Standing Senate Committee on Legal and Constitutional Affairs, and representative from all parties with seats in the House, will be invited to take part in a question and answer period with the eventual nominee. The meeting will be moderated by a law professor and it will provide an opportunity for Parliamentarians and members of the public to get acquainted with the future justice of the Supreme Court of Canada.
Who are the members of the Advisory Board?
The independent and non-partisan Advisory Board is composed of seven members. These are:
- a retired judge nominated by the Canadian Judicial Council;
- two lawyers, one nominated by the Canadian Bar Association and one by the Federation of Law Societies of Canada;
- a legal scholar nominated by the Council of Canadian Law Deans; and
- three members nominated by the Minister of Justice, at least two of whom are from outside the legal community.
Representation from the judiciary and the legal community on the Advisory Board will greatly aid in the assessment of the professional qualifications of candidates. The non-legal members - who are prominent and well respected Canadians – will help bring a diversity of views to the Advisory Board’s deliberations.
The Government has carefully selected members with a view to ensuring gender balance, diversity (including linguistic diversity), and regional balance in the Advisory Board’s composition. While not representing provinces or regions per se, the Advisory Board itself is regionally balanced, with members being drawn from different parts of Canada. Their role is to bring their diverse backgrounds and viewpoints to the ultimate goal of identifying the best candidates.
Are members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments paid for their services?
Independent Advisory Board for Supreme Court of Canada Judicial Appointments members are entitled to a per diem rate which is consistent with the Remuneration Guidelines for Part-Time Governor in Council Appointees in Agencies, Boards and Commissions. This per diem range is $375-450 for members and $550-$650 for the Chairperson.
Are applications being accepted from across Canada despite the regional custom that the seat be occupied by a justice from Atlantic Canada?
The Advisory Board will develop and submit to the Prime Minister a list of three to five qualified and functionally bilingual candidates that includes candidates from Atlantic Canada. Applications are being accepted from across Canada in order to allow for a selection process that ensures outstanding individuals are considered for appointment to the Supreme Court of Canada
Will the Supreme Court of Canada appointment process be modified in the event of a vacancy among the three Quebec court seats?
In the future, when one of the three Quebec seats is to be filled, the composition of the Advisory Board will be adjusted to account for Quebec’s unique legal tradition.
Will the new process politicize the appointments process?
No. The new process will be consistent with the independence of the Supreme Court of Canada. It establishes an independent and non-partisan Advisory Board, tasked with identifying suitable candidates for appointment. Appointments will meet established criteria and will be made following a selection process that is open, transparent, and sets a higher standard for accountability.
Where did the criteria and questionnaire come from?
The Government engaged the services of three legal academic experts to draft the criteria and questionnaire to be used for this process. These draft documents were produced by three members of the University of Ottawa's Public Law Group: Adam Dodek, Carissima Mathen and Charles-Maxime Panaccio – all of whom specialize in the areas of public and constitutional law.
The three most recent processes for appointing Supreme Court of Canada judges using a committee have included Members of Parliament. Why don’t Members of Parliament have a role on the Advisory Board?
The Government feels that the task of identifying suitable candidates for appointment should be given to an independent and non-partisan Advisory Board. That said, this new process provides many opportunities for Members of Parliament to be involved.
The Minister of Justice will first appear before the House of Commons Standing Committee on Justice and Human Rights to explain the new selection process. Then once the shortlist of candidates has been compiled by the Advisory Board, the Minister of Justice will consult with a wide range of stakeholders, including members of the House’s Justice and Human Rights Committee, the Senate’s Legal and Constitutional Affairs Committee, as well as the opposition justice critics.
Once the nominee is announced, participating MPs will be given a week to prepare for a special Justice and Human Rights committee hearing, where the Minister of Justice and the chair of the Advisory Board will explain why the nominee was selected.
Finally, members of the House of Commons Standing Committee on Justice and Human Rights, the Standing Senate Committee on Legal and Constitutional Affairs, and representative from all parties with seats in the House, will be invited to take part in a question and answer period with the eventual nominee. The meeting will be moderated by a law professor and it will provide an opportunity for Parliamentarians and members of the public to get acquainted with the future justice of the Supreme Court of Canada.
How many seats are you filling on the Supreme Court of Canada with this process?
The Honourable Justice Cromwell will be retiring from the Supreme Court of Canada on September 1, 2016. The Government intends to fill the vacancy created by Justice Cromwell’s impending retirement with this process, as well as any future vacancies that may arise.
Will the Government appoint only bilingual judges to the Supreme Court of Canada?
The Government has committed to ensuring that those appointed to the Supreme Court of Canada are functionally bilingual.
What does “functionally bilingual” mean?
As indicated in the criteria, the Supreme Court of Canada hears appeals in both English and French. Written materials may be submitted in either official language and counsel may present oral argument in the official language of their choice. Therefore, to be functionally bilingual, a Supreme Court of Canada judge should be able to read materials and understand oral argument without the need for translation or interpretation in French and English. It would be an asset if the judge can converse with counsel during oral argument and with other judges of the Court in French and English.
How will the Government ensure that those appointed are functionally bilingual?
Candidates will first be called on to indicate in their application package their proficiency in both official languages. As well, the Office of the Commissioner for Federal Judicial Affairs may conduct individual assessments of some candidates to ascertain their understanding of written and oral arguments, as well as to determine whether candidates have the ability to speak in both official languages.
How will the new process prioritize diversity on the Supreme Court of Canada?
The Government is committed to a selection process that ensures that outstanding individuals are appointed to the Supreme Court of Canada. The Government is also committed to ensuring that the Supreme Court of Canada, as an institution, is reflective of the diversity of Canadian society.
The fact that Canadian society is rich in diversity has important influences on the criteria that will be used at all stages of the selection process. This includes recognition that Supreme Court of Canada judges are called on to adjudicate complex legal questions between individuals and groups with a wide variety of experiences, backgrounds, and perspectives.
In addition, diversity within the Supreme Court of Canada itself is important for two main reasons. First, a diverse bench brings together different and valuable perspectives to the decision-making process, whether informed by gender, ethnicity, personal history, or the myriad of other things that make up who we are. Second, public institutions that reflect the diversity of the society they serve enhance public confidence and public acceptance of the institution as a whole. As such, the criteria specify that candidates are considered with a view towards ensuring that the members of the Supreme Court of Canada are reflective of the diversity of Canadian society.
Given the importance of aboriginal law to Canada’s legal tradition, should the Government not appoint an Indigenous judge to the Supreme Court of Canada?
The Government is committed to ensuring that the Supreme Court of Canada is reflective of the diversity of Canadian society.
Canada boasts a growing complement of outstanding Indigenous jurists, including judges, lawyers, and academics. Canadians from all communities – including Indigenous communities – are invited to encourage outstanding jurists to apply to become a Justice of the Supreme Court of Canada.
Will provinces and territories have any input into the selection of judges?
Yes. There will be opportunities for consultation with provinces and territories during the selection process.
In assessing candidates and arriving at a shortlist, the Advisory Board is required to consult with the Chief Justice of the Supreme Court of Canada and any key stakeholders that they consider appropriate. This may include relevant provincial and territorial Ministers of Justice.
Furthermore, in considering the shortlist and prior to making her recommendation as to the preferred nominee, the Minister of Justice will consult with relevant provincial and territorial counterparts.
Can any qualified candidate apply from anywhere in Canada?
Yes. The process is open to all qualified Canadians and is aimed at identifying the most outstanding candidate for the Supreme Court of Canada.
Will the shortlist created by the Advisory Board be made public?
No. In establishing a careful balance between the competing principles of transparency and confidentiality, it was decided that the process should respect the reasonable privacy interests of candidates so that as many qualified candidates as possible will apply.
Is the Prime Minister bound to choose an individual from the shortlist?
To ensure the Prime Minister’s discretion to nominate an individual for appointment to the Supreme Court is not fettered, the shortlist will not be binding. The Prime Minister may request that the Advisory Board provide him with additional names of qualified, functionally bilingual candidates if necessary. However, it is the Government’s intention to nominate an individual from the shortlist.
What happens if the House of Commons Standing Committee on Justice and Human Rights objects to a nominee?
The role of the House of Commons Standing Committee on Justice and Human Rights is to hold the Government accountable for the selection it has made. The Prime Minister will review and consider any views of the Committee prior to making his final selection.
The constitutional and legislative framework vests the responsibility for appointing Supreme Court of Canada judges in the executive branch of the federal government. So as to not fetter the Government’s discretion in discharging its role to select an individual for appointment to the Supreme Court of Canada, the committee’s objection to a candidate would not be binding on the Prime Minister.
When does the Prime Minister expect to be in a position to appoint the nominee to the Supreme Court of Canada?
It is anticipated that the appointment will occur during the Supreme Court of Canada’s fall session.
What will the report of the Advisory Board to be filed within one month of the appointment contain?
The Advisory Board report will contain information on how the mandate was carried out, including the steps undertaken in considering the applicants. It will contain all information about the costs (known at the time) related to the process. It will also include statistics relating to the number of applications received in a way so as not to identify any of the individual applicants. The Advisory Board report will be reviewed by the Government as it assesses the efficiency of this new process and whether any modifications are desirable for future vacancies.
Table of Contents
- Supreme Court of Canada Appointments
- Report of the Independent Advisory Board for the Supreme Court of Canada Judicial Appointments (November 2016) (view Minister of Justice's press release)
- The Honourable Malcolm Rowe's questionnaire
- The Independent Advisory Board for Supreme Court of Canada Judicial Appointments
- Biographies of Members
- Terms of Reference of the Advisory Board
- Qualifications and Assessment Criteria
- How to Apply and Instructions
- Frequently Asked Questions
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