CBA president Bianca Kratt warned against proposals that would politicize the process
The Canadian Bar Association has pushed back against premiers’ pitches to significantly change the judicial appointment process in Canada.
In a letter addressed to prime minister Mark Carney, CBA president Bianca Kratt called for resistance to proposals that would politicize the process, including those authorizing provincial governments to veto appointments. Kratt noted that the existing process was insulated from political considerations.
Kratt pointed out that provincial institutions have significant representation in the system of judicial advisory committees reviewing and suggesting judicial candidates. Representatives from law societies, justice ministers, chief justices, and the CBA’s provincial branches sit on these committees.
“By choosing from among the candidates recommended by these committees, the federal government invites extensive provincial input, while preserving the apolitical nature of the process. Any change that lets a provincial government discard committee recommendations would invite politicization, and thus be a step backward,” Kratt wrote in the letter.
Kratt explained that Canada’s judicial system differed from that of other countries “by design.”
“This isn’t a flaw; our court system is unique, and every country’s appointment process should reflect the constitutional framework it serves,” she wrote. “In Canada, provincial superior courts have broad jurisdiction to hear both federal and provincial matters, and are empowered to strike down both federal and provincial laws. The reality is very different in countries such as the United States and Australia, where state courts mainly restrict themselves to state matters. Our current system of federal appointments based on substantial provincial input makes sense in the Canadian context.”
Kratt said the current appointment process, which authorizes the federal government to name superior court judges, was laid out in Canada’s constitution under section 96. The process had been “understood and accepted for over 150 years” and affirmed by the Supreme Court.
Kratt indicated that the CBA was open to enhancing the process and improving public confidence and diversity in the courts; a “merit-based, relatively apolitical process with provincial government vetoes” would not enhance these aspects, she wrote.
“More promising reforms would focus on filling vacancies faster, addressing systemic barriers to judicial careers, boosting recruitment in under-represented communities, and increasing the transparency of the appointment process,” Kratt wrote. “Canadian political leaders should also be making every effort to relieve the significant resource pressures that contribute to court delays and complicate recruitment and retention of qualified judges, as well as to protect judges from threats and personal attacks.”
The CBA indicated its willingness to collaborate with the federal government as well as with provincial and territorial governments to improve the appointment process while protecting judicial independence.
