Supreme Court Membership in Canada

Supreme Court of Canada: Membership

Introduction to Supreme Court Membership

The Supreme Court of Canada has nine members: one chief justice and eight puisne (associate) justices. The chief justice is a first among equals: She or he is not legally superior to other judges. However, the chief justice has distinctive tasks, including managing and administering the Supreme Court and acting as the primary spokesperson for the Canadian judiciary.

When a vacancy occurs on the Court due to retirement or death, the Cabinet of the ruling government in the Canadian Parliament, led by the prime minister, appoints a successor after consulting with the Canadian Bar Association’s Committee on the Judiciary. If the chief justice retires or dies, the prime minister of Canada selects a replacement, usually from among the justices already on the Court. The power of appointment is entirely discretionary. There are no confirmation hearings, and the public has no input. The only explicit criteria for the position are that an appointee must have a minimum of ten years practice at the bar or must be a judge of a provincial superior court. Because of the secrecy of the appointment process, it is difficult to determine the other criteria that the Cabinet relies on in choosing justices.

Throughout the Court’s history, a majority of the justices have had experience as judges on lower courts-most often provincial courts of appeal-before joining the Supreme Court. Other appointees have come from political life or private law practice. In the past many appointees also had strong ties to the governing political party, and this tendency led to the criticism that the Court was a tool of political patronage. As the Court grew in stature in the years after World War II (1939-1945), this practice declined. The chief justice has almost always been chosen from among the puisne justices of the Court. The one exception to this tradition was Sir Charles Fitzpatrick, who was the federal minister of justice before being named chief justice in 1906.

Both law and convention dictate that justices appointed to the Supreme Court represent several regions of Canada. By statute, three justices on the Court must come from Québec, to assure that a minimum of justices have experience in Québec’s system of civil law, which differs from the British common-law tradition in the rest of Canada. By convention, three justices come from Ontario, two from the western provinces (British Columbia, Alberta, Saskatchewan, and Manitoba), and one from the Atlantic provinces (Newfoundland and Labrador, Prince Edward Island, New Brunswick, and Nova Scotia).

Despite this geographical diversity, critics contend that the Supreme Court is not representative in other ways: Only a maximum of three women have served on the Supreme Court at any one time. Also, there have been few non-Christian appointees, no visible minorities, no representatives from Canada’s three northern territories, and no aboriginal people on the Supreme Court. Although there have been frequent demands for a more inclusive and representative judiciary, no formal mechanisms to provide a more diverse judiciary have been developed.

Each justice receives a salary of approximately C$200,000. Some critics contend that Supreme Court justices are underpaid relative to lawyers in private practice and that this difference in compensation makes it difficult to attract the very best candidates to the Court.

Once appointed, a Canadian Supreme Court justice is extremely difficult to remove from office. Justices are entitled to remain on the Court until the compulsory retirement age of 75. Otherwise, a justice can be removed only if he or she breaches the obligation of ‘good behaviour’ established in the Supreme Court Act. The process to remove a justice is difficult in order to protect justices from outside influences that might compromise the independence of the judiciary. To remove a judge, a motion for removal must be passed by a joint resolution of the Canadian House of Commons and the Senate. Such a removal has never occurred in Canada’s history.

The Supreme Court has a significant support staff. Each judge has a team of three law clerks. Law clerks are chosen from the best graduates of law schools across the country. The chief executive officer is responsible for the organization of the staff and for public relations for the Court, including briefing the media on significant cases. The court registrar, with the help of approximately 15 staff lawyers, organizes the cases for the Court.” (1)

Resources

Notes and References

• Information about Supreme Court Membership in the Encarta Online Encyclopedia

Guide to Supreme Court Membership

Further Reading

Anderson, E. M., Judging Bertha Wilson : Law as Large as Life. Toronto: University of Toronto Press, 2001.

Baker, D. R. Not quite Supreme : The Courts and Coordinate Constitutional Interpretation. Montréal : McGill-Queen’s University Press, c2009.

Balcome, R.P.H., Supreme Court of Canada Decision-Making : The Benchmarks of Rand, Kerwin and Martland. Toronto: Carswell, 1990.

Beatty, D.M., Talking Heads and the Supremes : The Canadian Production of Constitutional Review. Toronto: Carswell, 1990.

Belleau, M-C. ed., Claire L’Heureux-Dubé à la Cour suprême du Canada. 1987-2002 = Claire L’Heureux-Dubé at the Supreme Court of Canada. 1987-2002. Montréal: Wilson & Lafleur, 2004.

Bevilacqua, F.M., The Supreme Court of Canada : a Politically Legal Role : a Study of the Policy-making Role of the Courts and the Impact of the Canadian Charter of Rights and Freedoms. Kingston, Ont.: Queen’s University, 1990.

Bernier, I. & A. Lajoie, The Supreme Court of Canada as an instrument of Political Change. Toronto: University of Toronto Press, 1986. (also available in French)

Beaudoin, G.-A., The Supreme Court of Canada: Proceedings of the October 1985 Conference. Cowansville, P.Q.: Éditions Yvon Blais, 1986.

Brodie, I., Friends of the Court. The Privileging of Interest Group Litigants in Canada. Albany, N.Y.: State University of New York Press, 2002.

Brooks, K. ed., Justice Bertha Wilson : One Woman’s Difference. Vancouver: UBC Press, 2009.

Brossard, J., La Cour suprême et la Constitution : le forum constitutionnel au Canada. Montréal: Presses de l’Université de Montréal, 1968.

Bushnell, I., The Captive Court : A Study of the Supreme Court of Canada. Montreal: McGill-Queen’s University Press, 1992.

Cameron, J. ed., Reflections on the Legacy of Justice Bertha Wilson. Markham, Ont.: LexisNexis Canada, 2008.

Canadian Bar Association. Committee on the Supreme Court of Canada, Report of the Canadian Bar Association Committee on the Supreme Court of Canada. Ottawa: The Association, 1987.

Carson, B., The Supreme Court of Canada in the Political Process. Ottawa: Library of Parliament, 1982.

Celebration of the Centenary of the Supreme Court of Canada (1875-1975) : The Role and Functions of the Final Appellate Courts : proceedings of the symposium held on September 26 and 27, 1975 in the Lester B. Pearson Building, Ottawa. Ottawa: Supreme Court, 1976. (also available in French)

Charter Equality Rights: Interpretation of Section15 in Supreme Court of Canada Decisions. [Ottawa]: Library of Parliament, Research Branch, 1995-

Décary, R., Cour suprême. Montreal: Wilson & Lafleur, 1988.

Dodek, A. & D. Jutras, The Sacred Fire : The Legacy of Chief Justice Antonio Lamer. Markham, Ont.: LexisNexis, 2009.

Finkelstein, N. & C. Backhouse, The Laskin Legacy : Essays in Commemoration of Chief Justice Bora Laskin. Toronto: Irwin Law, 2007.

Flemming, R.B., Tournament of Appeals : Granting Judicial Review in Canada. Vancouver: UBC Press, 2004.

Greene, I. et al., Final Appeal : Decision-making in Canadian Courts of Appeal. Toronto: J. Lorimer, 1998.

Guillemard, S. and M. Saint-Hilaire, 1982-2001 : Vingt ans de grands arrêts de la Cour suprême du Canada. Montréal: Wilson & Lafleur, 2002.

Guth, D.J., ed., Brian Dickson at the Supreme Court of Canada, 1973-1990. Winnipeg: Canadian Legal History Project, Faculty of Law, University of Manitoba, 1998.

Johnson, R. et al., Gérard V. La Forest at the Supreme Court of Canada 1985-1997. Winnipeg: Canadian Legal History Project, Faculty of Law, University of Manitoba, 2000.

Kaplan, W., Canadian Maverick : The Life and Times of Ivan C. Rand. Toronto : Published for the Osgoode Society for Canadian Legal History by University of Toronto Press, c2009.

Lang, O.E., Constitutional Reform : The Supreme Court of Canada. [Ottawa] : Govt. of Canada, Canadian Unity Information Office, 1978. (also available in French)

MacDonald, V.C., Legislative Power and the Supreme Court in the Fifties. Toronto: Butterworths, 1961.

Macpherson, D.I., The Supreme Court of Canada : Caricatures. Scarborough, Ont.: Butterworths, 1988.

Malleson, K. & P. Russell, Appointing Judges in an Age of Judicial Power: Critical Perspectives from Around the World. Toronto: University of Toronto Press, 2006.

Manfredi, C., Judicial Power and the Charter : Canada and the Paradox of Liberal Constitutionalism. 2nd Edition. Don Mills, Ont.: Oxford University Press, 2001; Toronto: M & S, c1993.

Manfredi, C., and M. Rush, Judging Democracy. Peterborough, Ont. : Broadview Press, c2008.

Martin, R., The Most Dangerous Branch : How the Supreme Court of Canada Has Undermined Our Law and Our Democracy. Montreal: McGill-Queen’s University Press, 2003.

McConnell, W.H., William R. McIntyre: Paladin of the Common Law. Montréal: McGill-Queen’s University Press, 2000.

McCormick, P., Supreme At Last. The Evolution of the Supreme Court of Canada. Toronto: James Lorimer & Company Ltd., 2000.

Monahan, P., Politics and the Constitution : The Charter, Federalism, and the Supreme Court of Canada. Toronto: Carswell, 1987.

Monahan, P. J.& S.A. Forbes, Peter Cory at the Supreme Court of Canada. 1989-1999. Winnipeg: Canadian Legal History Project, Faculty of Law, University of Manitoba, c2001.

Morton, F.L. & R. Knopff, eds., The Charter Revolution & the Court Party. Peterborough, Ontario: Broadview Press, Ltd., 2000.

Rochette, S. “La norme de contrôle judiciaire : Synthèse et recueil d’arrêts”, in Cowansville, Québec : Éditions Y. Blais, c2007.

Rodgers, S., and S. McIntyre, The Supreme Court of Canada and Social Justice : Commitment, Retrenchment Or Retreat. Markham, Ont. : LexisNexis, c2010.

Rosen, P., Major Proposals for Reform of the Senate and the Supreme Court of Canada since the 1971 Victoria Charter. Ottawa: Library of Parliament, 1980. (also available in French)

Russell, P.H., The Supreme Court of Canada as a Bilingual and Bicultural Institution. Ottawa: [Queen’s Printer], 1969.

Schafer, C., Judging the Judges : The Supreme Court of Canada’s Record on Individual and Economic Freedom and Equality. [Calgary]: Canadian Constitution Foundation, 2007.

Sharpe, R. J. & K. Roach., Brian Dickson. A Judge’s Journey. Toronto: University of Toronto Press, 2003.

Slayton, P., Mighty Judgment : How the Supreme Court of Canada Runs Your Life. Toronto, Ont. : Allen Lane Canada, 2011.

Snell, J.G. & F. Vaughan, The Supreme Court of Canada : History of the Institution. Toronto: University of Toronto Press, 1985.

Songer, D.R., The Transformation of the Supreme Court of Canada : An Empirical Examination.Toronto: University of Toronto Press, 2008.

“A Selection of Useful Sources on the Court and Its Justices”, in The Supreme Court of Canada and Its Justices 1875 – 2000: A Commemorative Book. Toronto, Dundurn Group, 2000, 213.

Herman, M.J., “Bibliography of Material on the Supreme Court of Canada” (1976) 8 Ottawa Law Review 102.

Logan, G.R., “Annotated Bibliography of Works Written on the Supreme Court of Canada” (1965) 3 Osgoode Hall Law Journal 173.

Trethewey, P., “A Bibliography of the Supreme Court of Canada” (1976) 14 Osgoode Hall Law Journal 425.

The Supreme Court of Canada and Its Justices. 1875 – 2000: A Commemorative Book. Toronto: Dundurn Press, 2000. (also available in french)

The Supreme Court of Canada: Legacy and Challenges: Commemorative Edition on the 125th Anniversary of the Supreme Court of Canada. [Ottawa: Canadian Bar Association, 2001]. (Reprint of volumes 79(1) 2000 and 80(2) 2001 Canadian Bar Review.) (also available in French)

Swinton, K., The Supreme Court and Canadian Federalism : The Laskin-Dickson Years. Toronto: Carswell, 1990.

Vaughan, F., Aggressive in Pursuit : The Life of Justice Emmett Hall. Toronto: University of Toronto Press, 2004.

Walker, J. St. G., Race, Rights and the Law in the Supreme Court of Canada : Historical Case Studies. [Waterloo, Ont. ]: Wilfrid Laurier University Press, 1997.

Weiler, P.C., In the Last Resort : A Critical Study of the Supreme Court of Canada. Toronto: Carswell Methuen, 1974.

Women’s Legal Education and Action Fund. Equality and the Charter : Ten years of Feminist Advocacy before the Supreme Court of Canada. Toronto: Emond Montgomery, 1996.

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This entry was last updated: May 20, 2018

Supreme Court

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