The Rule of the Courts

Adopting a Canadian Style Legislative Override to Reconcile American Judicial Review...

Its decisions serve as binding precedent for all the lower courts in the country. 64 Canadian judicial candidates tend to be former practitioners and academics. 65 When a judicial vacancy arises, the provincial Attorney General, the court’s chief justice, the local law society, Members of Parliament, Senators, and [other] interest groups are typically always consulted. 66 Once a list of potential candidates is created, background checks are completed and a final list of three or four contenders is submitted to the Canadian Bar Association for further screening and recommendation. 67 Outside of the lowest level judges that are appointed by provincial governments, all Canadian judges, including those on the superior trial courts, the courts of appeal, the federal courts, and the Supreme Court of Canada, are appointed by the Prime Minister of Canada or the Federal Minister of Justice, without either parliamentary or cabinet input. 68 The Prime Minister’s power in this area stems from Section 96 of the Constitution Act of 1867, which grants the Governor General, or the British Monarch’s representative in the country, sole power over judicial appointments. 69 Although the text of the Constitution does not say anything with respect to the Governor General receiving a recommendation from the Prime Minister, an informal and unwritten procedural understanding is that the Prime Minister recommends the justice who is then appointed by the Governor General. 70 65 James Wilets et al., A Critique of the Judicial Appointment Process and Rule of Law in the United States: A Comparative Perspective , 46 Nova L. Rev. 201, 243 (2022) Mark C. Miller, Judicial Activism in Canada and the United States , 81 JUDICATURE 262, 264 (1998). 66 James Wilets et al., A Critique of the Judicial Appointment Process and Rule of Law in the United States: A Comparative Perspective , 46 Nova L. Rev. 201, 243 (2022) citing L.A. Vandor, The Appointment of Judges in Canada , 7 ADVOCS.’ Q. 129, 130 (1986). 67 Id. 68 Mark C. Miller, supra note 65 at 264. 69 Constitution Act, 1867, 30 & 31 Vict., c 3 (U.K.). 70 Peter McCormick, Selecting the Supremes: The Appointment of Judges to the Supreme Court of Canada , 7 J. APP. PRAC. & PROCESS 1, 12-13 (2005). 63 Id. 64 Id.

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