Choosing judges in Canada
All first-time judges — no matter what level of court — have to be lawyers and had to have been practising for at least five years, although virtually all appointments come from lawyers who have at least 10 years of experience.
Judges are appointed either federally or provincially, depending on the level of court. The process — no matter what the court — is similar across the country.
At the federal level, a lawyer who has aspirations to sit as a judge of a Superior Court in a province or territory or of the Federal Court of Appeal, the Federal Court or Tax Court of Canada sends in an application to the Commissioner for Federal Judicial Affairs Canada. The candidate can also be nominated by "members of the legal community and all other interested persons and organizations." The commissioner will contact those who are nominated to make sure they're interested in the job.
The application is considered by a judicial advisory committee in the applicant's province. These eight-member committees include:
- A nominee of the provincial or territorial law society. · A nominee of the provincial or territorial branch of the Canadian Bar Association.
- A judge nominated by the Chief Justice or senior judge of the province or territory.
- A nominee of the provincial Attorney General or territorial Minister of Justice.
- A nominee of the law enforcement community.
- Three nominees of the federal Minister of Justice representing the general public.
The committee decides whether the candidate can be recommended. It may conclude that it is unable to recommend the candidate.
Final appointments are officially made by the Governor General, acting on the advice of cabinet.
When it comes to the appointment of chief justices and associate chief justices, the Governor General acts on the advice of the prime minister.
People who apply to serve on the bench are also expected to understand that — if appointed — they will be expected to conduct themselves in a manner that attracts no criticism to their office. They won't be allowed to:
- Engage in public debate about any of their decisions.
- Express personal opinions on major social issues that could lead to a perception of bias in their decisions.
- Engage in any outside business.
Factors that could prevent an appointment include:
- Drug or alcohol dependency.
- Past or current disciplinary actions or matters against the candidate.
- Past or current civil or criminal matters involving the candidate.
- Financial problems including bankruptcy and tax or child support arrears.
The process — and conditions — are similar when it comes to appointments made on the provincial level: applications go before a provincially-appointed committee, which sends its recommendations to the attorney general or minister in charge of the justice portfolio, who then makes recommendations to the cabinet. Appointments are made by the province's lieutenant-governor.
The provincial courts do the bulk of the work in the legal system: it's where most court cases start. Some provincial courts have specialized functions meaning they'll hear only family law cases, youth cases, small claims matters or criminal cases where the sentence will be under two years. When cases in these courts are appealed, they move up to a higher court, where judges are federally appointed.
That's the official route to an appointment to a job as a judge.
However, the process of making appointments to the bench has sometimes been seen as an opportunity to hand out plum jobs to political friends. In the fall of 2005, a parliamentary subcommittee looked into allegations of rampant partisanship in the appointment of judges below the level of the Supreme Court. And in April 2010, Quebec Premier Jean Charest ordered a public inquiry after his former justice minister alleged he was pressured to name certain judges to the bench based on the recommendations of major Liberal Party fundraisers.