Question 6: Appointment of Judges and the Rule of Law

Question 6

Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to have provincial governments, and not the federal government, select the justices appointed to provincial King's Bench and Appeal courts?

• At the heart of our judicial system is the fundamental principle that judges are required to act independently and impartially and to apply the law.

• The government’s role is to enact laws that are in the best interests of its citizens; the courts’ role is to ensure those laws are applied correctly and consistently.

• Democracies worldwide require their judges to be impartial and free of any government or other improper influence.

The question as framed appears benign. Those who favour separation will see the proposed change as entirely appropriate. Others, who understand the importance of the rule of law and the underlying intention of the question, will view it with alarm.

How are judges appointed now?

Alberta has three levels of courts: the Alberta Court of Justice, the Court of Kings Bench of Alberta, and the Court of Appeal of Alberta. All three levels of court are established by Alberta legislation. The court houses are built and maintained by the province and the staff (other than the judges) are Alberta government employees.

The Alberta Court of Justice handles the vast majority of legal cases including criminal, regulatory and civil cases such as traffic violations, offences against provincial laws, youth matters, family law and summary criminal offences. As set out in Canada’s Constitution, judges and justices of the peace of this court are appointed by and paid by the Alberta government.

The Court of King’s Bench acts as the superior trial court. It handles the most serious criminal trials (like murder or drug trafficking), corporate litigation, bankruptcy, estate disputes, and divorce. Pursuant to the constitution, judges of the Court of King’s Bench are appointed by and paid by the government of Canada.

The Court of Appeal reviews whether errors of law or fact occurred in judgements by the Court of King’s Bench and the Alberta Court of Justice. It sits as a panel of judges, usually three. As set out in the constitution, judges of this court are appointed by and paid by the government of Canada.

This structure for the appointment of judges to certain courts by the provincial government and the appointment of judges to certain other courts by the federal government has been in place throughout the country’s 159-year history.

The current appointment process for federally appointed judges, designed and implemented by the Mulroney government and subsequently modified by the Harper government, is as follows. Each province has at least one seven-member Judicial Advisory Committee tasked with screening applications for judicial appointment.

The committees are composed of a representative of the province’s judiciary, as well as representatives of the provincial law society and Canadian Bar Association. In addition, each committee has four members at large (provincial residents), three nominated by the federal government and one by the provincial government.

All applicants are required to submit a comprehensive application outlining their qualifications as well as their legal and community experiences. Notably, they are not asked to state their position on any matter they may be called upon to adjudicate if appointed.

The committees carefully review all applications and undertake comprehensive reference and reputation checks to ensure the candidates recommended for appointment possess the personal characteristics and experience required to discharge judicial duties fairly and impartially.

The federal government has promised to appoint only those applicants recommended by the committee and at the present time, this occurs without exception.

This screening process ensures a uniform national standard for the appointment of qualified judges.

Alberta has a similar screening process in place for the appointment of judges and justices of the peace of the Alberta Court of Justice.

So why change it?

Premier Smith has explained her concern. Her dissatisfaction with judicial authority was first voiced during the UCP leadership race to replace Premier Jason Kenney. Ms. Smith announced then that if she were elected Premier, she may decide to ignore decisions from the Supreme Court of Canada that were not in Alberta’s interests. The push back from all but her base was unanimous - the resulting chaos would destroy both the economy and social order; Alberta would be unable to attract investment without a properly functioning legal system. A few weeks after she won the UCP leadership Ms. Smith announced she was abandoning the idea.

More recently, the Premier advised that her government was increasingly willing to resort to the Notwithstanding Clause of our Charter of Rights and Freedoms to counter judicial decisions which in her opinion, strayed too far from the public interest. In other words, that the government would protect legislation that courts may find unconstitutional – another way of overcoming judgments thought to be unfavorable.

In the ensuing discussion the Premier defended her position and shared her philosophy regarding the proper role of the judiciary. As reported by the Canadian Press, the Premier has said:

“Unelected judges making decisions without oversight, and without having to go to the people to get the democratic endorsement of their view – that’s not democracy. When elected officials make decisions, that is democracy.”

That followed an earlier comment by the Premier:

“We are not going to defer to unelected judges who do not have democratic accountability on their side.”

Another time, on her radio program, the Premier mused that she “wished she could direct judges.”

Other than President Trump, no duly elected leader of a democratic society has voiced such thoughts.

Undermining the fundamental role of the judiciary

The statements by the Premier and others evidence a profound and disturbing misunderstanding of the role of the judiciary and the importance of judicial independence.

At the heart of our judicial system is the fundamental principle that judges are required to act independently and impartially and to apply the law. Their decisions are not made on the basis of the political leanings of the party in office when they were appointed. Nor are they made on the basis of what might appear to be popular opinion or the opinion of the majority. In fact, some laws, like the Charter of Rights and Freedoms and the Human Rights Act are expressly intended to protect the rights of minorities.

The government’s role is to enact laws that are in the best interests of its citizens; the courts’ role is to ensure those laws are applied correctly and consistently.

In response to the Premier’s statements, the three Chief Judges of Alberta, leaders of the three levels of court, took the unprecedented step of releasing a joint public statement to explain the importance of the rule of law and judicial independence in a democracy.

No other Canadian province, no other Western democracy, indeed no true democracy anywhere in the world allows its government to “direct” judges or have its judicial independence compromised in any way. The opposite is true – all require their judges be impartial and free of any government or other improper influence.

Judges who would allow their decisions to be influenced to favour the government that appointed them or take direction from that or any government would corrupt our justice system. In fact, this is the very reason judges in Canada are not elected; their role is to decide cases based on the law, not on what they think they need to do to be re-elected.

We must remember that there can be no justice without the rule of law and judicial independence which is an integral aspect of the rule of law. They are the foundation of every functioning judicial system, which in turn is the foundation of every true democracy.

So it is of concern when the Premier and others persist in speaking of the need to bend the judiciary to the government’s will.

And that appears to be the objective of this question Albertans will be asked to answer in October.

Our View

Based on our analysis, we are voting no to question 6.