Judicial appointments in Canada are made by the federal government or provincial government. Superior and federal court judges are appointed by federal government, while inferior courts are appointed by the provincial government.
Court system
There are two levels of courts in each province or territory (except Nunavut): superior (upper level) courts appointed by the federal government, and a provincial or territorial court appointed by the province or territory.
Provincial courts
Advisory committee
Candidates for these courts are screened by a judicial advisory committee established for each province or territory. Several provinces have created arm's length committees that make a short list of recommendations. Committees are often composed of representatives of the federal and provincial governments, the legal profession, the judiciary, and the general public.
Ontario Judicial Appointments Advisory Committee
In Ontario, the Judicial Appointments Advisory Committee (JAAC) is made up of 13 members: 7 lay members, 2 judges, 1 member appointed by the Ontario Judicial Council, and 3 from the legal community. JAAC recommends a list of 3 or 4 candidates, far less than its federal counterpart. Proponents of the system argue that this procedure has limited the scope of patronage in appointments to Ontario courts, and has diversified the makeup of judges in the province. Unlike other committees, the JAAC advertises openings and interviews candidates in person.
Application
Lawyers who meet the legal and constitutional requirements can apply, as well as existing provincial or territorial court judges. These candidates must complete a comprehensive Personal History Form, which is submitted to the appropriate advisory committee. In its assessment of each candidate, the committee reviews the PHF and consults references and other persons both in and outside the legal realm. Some committees interview the candidate.
Superior and federal courts
Judicial Appointment Committees
A committee of eight persons vets candidates in each region across Canada. Each candidate is assessed as being "recommended" or "not recommended." A third designation, "highly recommended" was eliminated in 2007, which critics say enhanced the government's ability to make patronage appointments. The federal government said the system emphasizes merit, and the large pool allows the government "to address the particular needs of the court in question."
Minister of Justice
A list of all candidates reviewed by the committee, together with the above categorization and reasons, or "comments" in the case of judge candidates, is forwarded by the committee to the federal Minister of Justice.
The Minister draws an appointment from the list of names received from the committees, and recommends that individual to the federal cabinet. Where the appointment is that of a Chief Justice or a Puisne Justice, the recommendation to cabinet is made by the Prime Minister of Canada.
"Elevation," or the appointment of a superior court judge already in office to another superior court (usually an appellate court), is not subject to the above application and assessment procedures. These appointments are effected through a recommendation to cabinet by the Minister of Justice (or Prime Minister) following consultations undertaken by the Minister.
In November 2005, a subcommittee of the Canadian parliament expressed the need for change and for more transparency in this appointment process. The subcommittee proposed that the Minister consult the Chief Justice of the court involved on the needs of the court prior to an appointment, that specific court vacancies and their requirements be advertised and that, subject to further study, advisory committees develop a short list of interviewed candidates for each vacancy.
Federal courts
Appointments to the Federal Court and to the Federal Court of Appeal are subject to the application and assessment procedure.
Appointments to the Tax Court are subject to candidate assessments by a single five member advisory committee for all Canada which includes a representative of the Tax Court—as a one-year pilot project announced in November 2006.
Supreme Court of Canada
Eligibility for the Supreme Court of Canada is set out in the Supreme Court Act. Judges of the court are made up of eight puisne judges and the Chief Justice. Candidates must have either been a judge of a superior court or a lawyer for at least ten years in their province's bar. Appointments are made by the Governor General of Canada on advice of the Prime Minister.