Albertans to vote on judicial appointments as premier argues ‘distinct legal traditions’

Albertans will be tasked with juggling many ideas when they vote in this October’s referendum, from the more familiar — immigration, separation — to some that, perhaps, they may not have had front-of-mind.

One of the questions in that latter category? Who should appoint the judges who sit on the province’s higher courts, the Court of King’s Bench and the Court of Appeal.

As Alberta’s superior courts, they deal with the most serious criminal and civil cases and have the power to review decisions of the provincial court.

Today, judges on those courts are appointed by the federal government, an arrangement that dates back to Confederation in 1867.

Alberta wants to change that. 

Why? The province’s justice ministry says it believes “provinces should have a direct voice in selecting judges who will interpret and apply their laws,” though critics disagree over whether the existing process already gives Alberta meaningful input. More on that later.

Importantly, Ottawa has already rejected earlier proposals on this subject.

Like other questions tied to constitutional reform on the ballot, a “yes” vote doesn’t mean immediate change.

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Instead, it would function as a sort of endorsement for Alberta to pursue a constitutional change. That would require the support of Parliament, as well as at least seven provinces representing at least half of Canada’s population.

“This is definitely an interesting ballot question,” said Gerard Kennedy, an associate professor in the faculty of law at the University of Alberta, whose research has focused on the role of courts in society.

The referendum is the latest step in a broader push by Alberta to get more control over judicial appointments.

Earlier this year, Alberta’s legislature passed a motion seeking a constitutional amendment to require the federal government to select superior court judges from a list approved by the province.

The referendum goes further, asking Albertans whether the province should pursue the power to make those appointments itself.

Alberta has also joined Ontario, Quebec, and Saskatchewan in urging Prime Minister Mark Carney to give provinces a more formal role in judicial appointments.

“Provinces know their communities best. A meaningful role in judicial appointments ensures our courts reflect each province’s realities,” Saskatchewan Premier Scott Moe wrote in March.

Kennedy said there is a legitimate debate to be had over the current arrangement.

“If you were designing a federation from scratch … it’s defensible, but most countries wouldn’t do that,” he said.

But he questioned whether Ottawa would be willing to surrender a significant constitutional power even if several provinces support the idea.

“You don’t just need the provinces to agree, you also need the federal government to agree,” he said.

Today, lawyers who are being considered for Alberta’s federally appointed courts are screened by a judicial advisory committee (JAC).

That committee includes nominees of Alberta’s chief justice, the Law Society of Alberta, the Canadian Bar Association and Alberta’s justice minister, as well as three nominees from the federal government.

The committee evaluates candidates and sends recommendations to Ottawa, and the federal justice minister then chooses who to recommend for appointment.

The Canadian Bar Association has defended the process as being rigorous and merit-based, adding that applications by judicial candidates are “exhaustively reviewed by independent, non-partisan” committees.

Adèle Kent, a retired Court of King’s Bench of Alberta justice, said the committee is seeking people with a good work ethic who have “an excellent understanding” of legal principles and of their community.

“They’re making a judgment on the quality of the person as a lawyer, as someone who will be applying the law, and they’re also checking for issues of their reputation and ethical standards,” Kent said.

But a Calgary lawyer, writing for the Macdonald-Laurier Institute think tank, recently argued the structure of the existing process can introduce bias.

“When combined with the progressive inclinations of provincial law societies and the CBA, the result is a JAC heavily tilted towards an ideological litmus test, making it more difficult for qualified candidates with more conservative perspectives to run the gauntlet,” Collin May wrote. 

However, Kennedy said Canada is fortunate that the judicial appointment system is “nowhere near” as politicized as it is in the United States.

He said some consideration of a candidate’s broader judicial outlook is not necessarily improper, provided those appointed are qualified and act independently and in a non-partisan fashion once on the bench.

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He added criticism of judges and court decisions is legitimate, and sometimes necessary, in a democracy.

“If the judiciary overplays its hand and becomes too powerful, that is also not good for democracy,” he said.

But there is a line politicians should be careful not to cross, he said.

“We do need a respected non-partisan judiciary whose decisions are followed as essential for the rule of law,” Kennedy said.

In a statement, Alberta Justice Minister Mickey Amery argued the existing arrangement does not go far enough.

“Provinces lack a strong, meaningful voice in the appointment of superior court judges,” he wrote.

That is why the referendum will ask Albertans whether the province should work with others to change the system, Amery said.

Alberta Premier Danielle Smith has argued that greater provincial control could help ensure judges “appropriately reflect Alberta’s distinct legal traditions.”

She has also said reform could lead to a “joint process to choose those judges so we start choosing judges in Alberta that reflect the values of how we want them to operate here.” 

That language has drawn criticism from the Canadian Bar Association, which has said it “implicitly impugns sitting judges.”

“Judges must fairly and independently apply the law, not produce outcomes that suit the government of the day,” the organization wrote earlier this year.

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Kent, the retired Court of King’s Bench of Alberta justice, said judges do need to understand the communities in which they live.

When picking juries in Alberta, judges must understand, for example, that it would be an extreme hardship for some to sit on a long trial during harvest season or calving season.

But Kent said that is different from the idea of Alberta having a distinct legal tradition.

“I’m at a loss,” Kent said of her view of that concept.

“The laws aren’t completely unified [in Canada], but they’re going in that direction,” Kent said, adding the country has been working for 100 years to harmonize laws across the country which allows freer movement of people and easier commerce.

Kennedy at the University of Alberta said Alberta’s legal tradition isn’t fundamentally distinct from those of the other common law provinces.

“Obviously the judges have to interpret Alberta statutory law rather than Ontario statutory law,” Kennedy said.

“But I wouldn’t say that the difference between Alberta and Ontario is anywhere near as profound as it is between Quebec and everywhere else.”

A spokesperson in Alberta’s justice ministry did not directly address a question requesting more information around what the province considers to be Alberta’s “distinct legal traditions.”

The province has also argued that giving Alberta a greater role could help fill judicial vacancies more quickly.

Kent said delays in federal judicial appointments have been a serious problem at times, including in the years surrounding the COVID-19 pandemic.

But she said Ottawa has been considerably more prompt in filling Alberta vacancies in the recent past.

Of course, even a resounding “yes” vote wouldn’t hand Alberta the power to appoint its own judges on Oct. 19. 

But it would give a mandate to Alberta’s government to continue pursuing this reform, beyond joint letters and threats to withhold funding.