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Presentation to Interim Ad Hoc Committee on the Appointment of Supreme Court Judges

Chief Justice John Richard
Federal Court of Appeal
Presentation to Interim Ad Hoc Committee
On the Appointment of Supreme Court Judges
Ottawa - Parliament - West Block
August 25, 2004

The Canadian Judicial Council is entitled to name a representative to the Special Ad Hoc Committee on the Appointment of Supreme Court Judges. The protocol adopted by the House leaders of the various parties in the House of Commons stipulates that the Ad Hoc Committee will primarily comprise members of Parliament and will also include non-parliamentary representatives of the Law Society of Upper Canada and the Canadian Judicial Council. The Canadian Judicial Council was created under the Judges Act and is made up of the Chief Justice of Canada, who serves as chairperson, the chief justice(s) and associate chief justice(s) of the superior courts, the senior judges of the supreme courts of the Yukon Territory and the Northwest Territories and the Nunavut Court of Justice, and the Chief Justice of the Court Martial Appeal Court of Canada.

The Council's mission is to promote efficiency and uniformity and to improve the quality of judicial service in superior courts.

The Chairperson of the Council, the Right Honourable Beverley McLachlin, Chief Justice of Canada, asked me to take part in the Committee's proceedings as the Canadian Judicial Council's representative. I am the Chief Justice of the Federal Court of Appeal and one of the Council's two vice-chairpersons.

The Canadian Judicial Council holds the view that the process of appointing judges to the Supreme Court of Canada must preserve confidence in the Supreme Court of Canada.

In a statement following its mid-year meeting in Ottawa on March 26, 2004, the Canadian Judicial Council endorsed the views expressed by the Council Chairperson and Chief Justice of Canada welcoming public discussion of the Supreme Court appointment process. The Council stated:

"The most important value in the appointment of judges is to sustain public confidence in the independence, ability and wisdom of the men and women named to the Court."
The Canadian Judicial Council encouraged the Government to proceed with care and deliberation in creating any new process. It added: "We must ensure that judges of the Supreme Court of Canada continue to be drawn from the best legal minds of our country".

The Canadian Bar Association, in a release dated March 24, 2004, said that the appointment of judges to the Supreme Court of Canada must adhere to the principles of judicial independence, openness and merit, and must not follow the path toward U.S.-style congressional hearings. The Canadian Bar Association went on to say:
"The CBA is strongly opposed to any system which would expose judges to Parliamentary criticism of their judgments, or cross-examination on their belief or preferences or judicial opinions, or any measure which would give to Canadians the mistaken impression that the judicial branch answers to the legislative branch."
An independent and impartial judiciary has long been recognized as essential to a free and democratic society; it is the constitutional right of every Canadian. Parliament, the legislators and the executive branch cannot, and should not appear to, exert political pressure on the judiciary. Since 1988, independent advisory committees in each of the provinces established by the Office of the Commissioner for Federal Judicial Affairs oversee the appointment process for federally appointed Superior Court judges. These committees consist of members of the Bench, the Bar, and the general public and include nominees by the Attorney General of the province and of the federal Minister of Justice.

The role of the courts as resolver of disputes, interpreter of the law and defender of the Constitution, including the Charter, requires that they be separate in authority and function from all other participants in the justice system.

The objective of any process relating to the appointment of judges must be to preserve the integrity, independence and impartiality of our judiciary. The first qualification of a judge is the ability to make independent and impartial decision. The judge's duty is to apply the law as he or she understands it without fear or favour and without regard to whether the decision is popular or not.

As stated in Ethical Principles for Judges, published by the Canadian Judicial Council in 1998, "This is a cornerstone of the rule of law."

The two judges nominated to the Supreme Court of Canada, Justice Abella and Justice Charron, have been judges of the Ontario Court of Appeal since 1992 and 1995 respectively and have a great deal of experience in law.

Their credentials speak for themselves.

I note that Susan McGrath, the President of the Canadian Bar Association, in a statement following the release of the names of the nominees said that: "Justices Charron and Abella have gained a reputation for their wisdom, fairness and dedication to the administration of justice. These two judges were appointed to our highest court based on their outstanding qualifications." The candidates were selected after extensive consultation, in which the CBA participated.

Questions

  1. I would request the Minister to confirm that the Protocol that contains the terms of reference of this Ad Hoc Committee were set and determined by the House Leaders of each of the political parties in the House of Commons and that the Canadian Judicial Council was not a participant in that process. (The Minister of Justice confirmed that this was the case.)

  2. I would ask the Minister to confirm that the Ad Hoc Committee, in the first instance, has been asked to provide its advice on the appointment of the proposed nominees, for consideration of the Prime Minister by Friday, August 27, 2004. (The Minister of Justice confirmed that this was the case.)

  3. I would ask the Minister to confirm that the process of consultation, which he described to the Committee, led him to determine that the two nominees were meritorious for appointment to the Supreme Court of Canada. (The Minister of Justice confirmed that this was the case.)

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Date Modified: 2015-09-09