Canada S Appointment of Supreme Court Judges

Appointment of Judges to Canada's Supreme Court

The current democratic governance system in Canada permits the federal Cabinet and the Prime Minister to appoint judges to the country's Supreme Court.[footnoteRef:2] As the appointments are formalized through the Governor General, the Supreme Court is the final and highest court in the Canadian justice system. Based on the current system, Canada's general parliament, provincial legislatures, and citizens do not participate in the process of appointment of judges to the Supreme Court. Actually, the Governor General makes final appointment of these judges on behalf of the cabinet and advice of the Prime Minister. This process of appointment of judges to Canada's highest court is based on the Supreme Court Act, which was enacted by the federal government in line with its constitutional authority. [2: Wendy Tso, "Judicial Appointments and Independence," Centre for Constitutional Studies -- University of Alberta, accessed February 24, 2016, http://ualawccsprod.srv.ualberta.ca/centres/ccs/issues/judicialappointmentsandindependence.php]

The current process of appointment of judges to Canada's Supreme Court has attracted criticisms given confusion on who actually appoints the judges. Even though it's the entire Cabinet involved in this process, there are suggestions that the Prime Minister is solely responsible for the appointments. Since the current process does not involve the participation of the general cabinet, provincial legislatures and citizens, it has been criticized for lack of transparency. The other issue that has characterized this process is concerns that there is increased likelihood of the appointments to be partisan and politicized in order to conform to the ruling party's agenda. These issues are exacerbated by the lack of formal constraints and seeming lack of judicial independence. The lack of judicial independence is attributable to the likelihood of the Prime Minister to appoint judges who lean towards the political philosophy of his/her party. Actually, the process of appointing Supreme Court judges in Canada is sometimes considered as an opportunity to give jobs to political friends.

In light of this discussion, there is an increased need to reform this process in order to enhance civic participation and judicial independence. The inconsistencies of the process have not only been historical issues but have also attracted considerable attention in the recent past as evidenced in political debate and public scrutiny. Reforming this process of appointment will help Canada to stop utilizing a closed and discretionary process for appointing judges to its highest court. Moreover, reforms would help the country maintain its high regard among the various nations in Western democracy. This will be achieved through eliminating uncertainties that constantly endanger legitimacy and contributes to lack of confidence in high court appointment process.