Frequently Asked Questions [ARCHIVED CONTENT]

Why did the Government change 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 closes on September 15, 2017, the Advisory Board 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.

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 a representative from each party 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.

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.

How many seats are you filling on the Supreme Court of Canada with this process?

The Right Honourable Chief Justice McLachlin will be retiring from the Supreme Court of Canada on December 15, 2017. The Independent Advisory Board will assist in identifying a ninth member of the Court to fill the vacancy created by the Chief Justice’s retirement.

What is the process for appointing the next Chief Justice of the Supreme Court of Canada?

To ensure the Prime Minister’s full discretionary authority to appoint chief justices is preserved, a two-stage process will be used to identify the next Chief Justice of the Supreme Court of Canada.

The first stage to identify the ninth member of the Supreme Court of Canada will employ the same open, transparent and accountable process that was used to select Justice Rowe. Its key feature is once again the 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 caliber, functionally bilingual, and representative of the diversity of this great country.

The Minister of Justice will undertake consultations on the shortlist 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 to serve as the next member of the Supreme Court of Canada.

The second stage of the process then will commence for purposes of selecting the next Chief Justice. The Prime Minister will determine who from among the eight existing members of the Court and the nominee is best-placed to serve as the Chief Justice of Canada.

Identifying a Chief Justice involves recognition of the important role he or she must play in fostering collegial decision-making on the Court, attending to a myriad of important leadership and administrative responsibilities, and effectively representing the Canadian judiciary at home and abroad. Those consultations by the Prime Minister will include the Minister of Justice, the outgoing Chief Justice and the prospective candidate or candidates, together with others whose advice the Prime Minister might seek. Upon completion of these consultations, the Prime Minister will publicly announce his selection of Chief Justice.

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 assessment 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 assessment 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?

Chief Justice McLachlin was appointed to the Supreme Court of Canada from the British Columbia Supreme Court. In recognition of the custom of regional representation on the Supreme Court of Canada, the process will be open to all qualified applicants from Western Canada and Northern Canada.

Candidates may demonstrate that they satisfy the geographical requirement by reference to their bar membership, judicial appointment, or other relationship with Western Canada (British Columbia, Alberta, Saskatchewan, and Manitoba) or Northern Canada (Northwest Territories, Nunavut, Yukon).

Do candidates who submitted applications in the last selection process need to re-apply?

Yes. All qualified candidates wishing to be considered for this selection process must submit an application form.

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 prior to the start of the Supreme Court of Canada’s 2018 winter session.

The Advisory Board is to produce a report within one month of the appointment. What will it 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.