Judge

The Appointment of Judges to the Supreme Court of Canada

Although the Governor General legally has an unfettered discretion in the appointment of qualified men and women to be judges of the Supreme Court, since the 1970’s the governments of the day have, with some exceptions, followed the practice of consulting with other groups, such as the Canadian Bar Association, before exercising this appointment power.

Since 1949, a pattern of regional representation has been maintained under which three judges come from Quebec as required by statute, while by informal custom, there is a rough allocation (that is varied from time to time) of three judges from Ontario, two from the western provinces and one from the Atlantic provinces.

In the United States, where Supreme Court judges are nominated by the President, but must be confirmed by the Senate (representing the states), there is no procedure to “break” a deadlock.

The Canadian Charter of Rights and Freedoms reduced the number of division of powers cases heard by the Supreme Court and increased the number of cases concerning individual rights. A provincial or national bias–assuming that any such bias exists–is largely irrelevant to deciding Charter cases.

In the United States, they have a double veto. The fact that the Senate rejected 20 presidential nominees did not really create any insurmountable problems. Two elected people usually manage to reach an agreement.

THE LAWYER AS JUDGE: Contents

This covers:

• Historical Perspectives (the Canadian perspective)
• Appointment Of Judges In Canada
• Judges’ Powers (see below)
• Judges’ Duties
• Judges’ Independence (see below)
• Judges’ Conduct – Other
• Codes of Conduct
• Discipline, Canadian Judicial Council (and provincial boards)
• Judges, Biases

Judges’ Powers include:

• the power to control court process
• the power to decide
• the power to change the common law
• immunity from suit, proceedings
• inherent powers respecting jurisdiction

Judges’ Independence includes:

• constitutional entrenchment
• perceived encroachments on independence
• independence to speak out

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This entry was last updated: February 15, 2017