Executive Power

The executive’s power to appoint judges is strongest in Canada and Australia. According to the Supreme Court Act, judges of the Supreme Court of Canada “shall be appointed by the Governor in Council by letters patent under the Great Seal"[1] The phrase “Governor in Council” in effect refers to the federal cabinet delivering advice to the governor-general that generally must be followed. The prime minister has always dominated the advice giving.[2] The main constraint on the appointment power lies in regional representation. Three out of the nine justices must be appointed from amongst the judges or advocates of Quebec.[3] By convention, three justices are from Ontario, one from Atlantic Canada, and two from the four western provinces.[4]

The appointment process in Canada has always been quite secretive. The prime minister has the final say and consults with various judges and lawyers but beyond that the process has been largely closed. In 2005 the Liberal government attempted to make the process more transparent. The idea was for the minister of justice to consult with the attorney general of the province with the vacancy, and leading members of the legal community, and create a “long list” of an unspecified number of qualified candidates.[5] The Conservative government under Prime Minister Harper, which was elected in 2006, adopted this plan. A selection panel of five Members of Parliament (three government MPs, and one from each of the opposition parties as selected by the leaders of those parties) was then to assess the candidates in consultation with the chief justice, the attorney general of the province with the vacancy, and the legal community, and provide an unranked short list of three qualified candidates per vacancy to the prime minister and the minister of justice.[6] The prime minister and the minister of justice would then select a nominee, presumably from this shortlist. Following the selection, an ad hoc parliamentary committee was to question the nominee at a public hearing.[7] The committee would not have the power to delay or veto the appointment. The prime minister would formally appoint the nominees to the Supreme Court the day after these hearings.[7]

There are two concerns with this process. First, critics claim it is still too secretive. Despite the involvement of a selection panel and an ad hoc committee, the prime minister is still able to shut out any unwanted candidates and not much is known about the criteria for selection or the nature of consultations.[9] Further, the selection panel also works in secret, and the ad hoc committee has little time to prepare for the hearings.[10] In any case, Prime Minister Harper abandoned the process in his final appointments. He did not use the selection committee to arrive at a short list nor allow an ad hoc parliamentary committee to question the candidates, meaning there was no public aspect to the process or involvement of other parties for either appointment.[11] Recently elected Prime Minister Justin Trudeau has promised to reform the appointment process to make it more transparent as well as to include other criteria for selection such as bilingualism.

The executive similarly controls appointments in Australia. The Australian Constitution gives the power of appointment of justices to the governor general in council (cabinet).[12] In practice, the prime minister and cabinet decides on an appointment on the recommendation of the attorney gen- eral.[13] The attorney general, in making a recommendation, is obligated to consult with the attorney generals of the states.[14] The attorney general may also consult with the chief justice, members of the legal community, parliamentary colleagues, cabinet colleagues, and other individuals, but little is known about how the attorney general decides upon a proposed nominee.[15]

The prime minister may be involved in the process for the appointment of a chief justice.[16]

The executive therefore holds the appointment power in Canada and Australia. Although in each case the formal rules specify that the governor in council appoints judges, the norm is the prime minister or the attorney general plays the key role. The prime minister consults with others but there is relatively little transparency or role for other parties, elected or not, particularly as we will see relative to the united States.

  • [1] Supreme Court Act RSC 1985, c S-26, s 4(2) [Supreme Court Act Canada].
  • [2] Peter McCormick, “Selecting the Supremes: The Appointment of Judges to the SupremeCourt of Canada” (2005) 7:1 Journal of Appellate Practice and Process 1 at 13 [McCormick,“Selecting the Supremes”].
  • [3] Supreme Court Act Canada, supra note 12, s 6.
  • [4] McCormick, “Selecting the Supremes,” supra note 13 at 13.
  • [5] Adam M. Dodek, “Reforming the Supreme Court Appointment Process, 2004-2014: A 10-Year Democratic Audit” (2014) 67 at 13-15, The Supreme Court Law Review: Osgoodes AnnualConstitutional Cases Conference 111 [Dodek].
  • [6] In 2011, Justices Moldaver and Karakatsanis were appointed at the same time. Therefore, theshortlist consisted of six candidates, rather than three candidates.
  • [7] Dodek, supra note 16 at 16.
  • [8] Dodek, supra note 16 at 16.
  • [9] Dodek, supra note 16 at 34-38, 43.
  • [10] Dodek, supra note 16 at 44.
  • [11] The prime minister bypassed the appointments process for Justices Clement Gascon andSuzanne Cote, with his government claiming concerns about leaks in the process: JenniferHough, “Clement Gascon, a Quebec Court of Appeal Judge, Nominated to the Supreme Court,”National Post (June 3, 2014), online: http://news.nationalpost.com/2014/06/03/clement-gascon-a-quebec-court-of-appeal-judge-nominated-to-supreme-court/; T. MacCharles, “QuebecLawyer Suzanne Cote Named to Supreme Court of Canada,” Toronto Star (November 27, 2014),online: http://www.thestar.com/news/canada/2014/11/27/quebec_lawyer_suzanne_ct_named_to_supreme_court_of_canada.html.
  • [12] Commonwealth of Australia Constitution Act 1900 (Cth), s 72.
  • [13] Mita Bhattacharya & Russell Smyth, “The Determinants of Judicial Prestige andInfluence: Some Empirical Evidence from the High Court of Australia” (2001) 30:1 Journalof Legal Studies 223-252 at 229; “Judicial Appointments: Ensuring a Strong, Independentand Diverse Judiciary through a Transparent Process,” Commonwealth of Australia (2010),online: http://www.ag.gov.au/LegalSystem/Courts/Documents/JudicialApptsEnsuringastrongandindependentjudiciarythroughatransparentprocess.pdf.
  • [14] High Court of Australia Act 1979 (Cth), s 6 [High Court of Australia Act].
  • [15] George Winterton, “Appointment of Federal Judges in Australia” (1987) 16 MelbourneUniversity Law Review 185 at 186-187 [Winterton].
  • [16] Winterton, supra note 26. In New Zealand, the governor general on behalf of the queenappoints Supreme Court justices. Judicature Act 1908 (NZ), 1908/89, s 4(2). The governor general generally makes appointments on the advice of the attorney general, or the prime minister in the case of the chief justice. Richard Cornes, “Appealing to History: The New ZealandSupreme Court Debate” (2004) 24 Legal Studies 210 at 216. The government does not have astatutory obligation to consult with any interested parties before making its selection. PushkarMaitra & Russell Smyth, “Judicial Independence, Judicial Promotion and the Enforcement ofLegislative Wealth Transfers—An Empirical Study of the New Zealand High Court” (2004) 17European Journal of Law and Economics 209 at 217.
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