The Rule of the Courts

M. Akram Faizer

As such, the sitting Prime Minister has the final say in deciding who is appointed to all judicial vacancies including those that arise on the nine member Supreme Court of Canada. 71 There is no legislative confirmation process for filling judicial vacancies and the process is thoroughly apolitical and nonpartisan. 72 By tradition, the focus is on legal merits as opposed to politics. 73 Miller’s study evidences that several judges take great pride in the fact they were appointed to the superior trial courts by one party, and then elevated to the provincial court of appeal by another, thereby stressing the importance of judicial independence from politics. 74 When asked to state the main differences between judges in the U.S. and judges in Canada, almost all the Canadian judges interviewed stated that the biggest difference was the political nature of judicial selection and judicial decision-making in the United States. 75 This case should not be overstated. For example, may of the lawyers who become judges in Canada have significant political links with current government officials and with the party in power. 76 Moreover, Canada’s ten provincial governments, especially that of Quebec, would like a greater say in the judicial selection process. 77 Like U.S. federal judges, Canadian judges have tenure in office, but unlike their U.S. counterparts, must retire by age 75. 78 The Supreme Court of Canada consists of nine judges, including the Chief Justice of Canada. 79 Unlike the U.S. Constitution, which is silent as to geography, Canadian law requires that at least three of the nine the Supreme Court of Canada

71 Id. 72 Mark C. Miller, supra note 60 at 36. 73 Mark C. Miller, supra note 60 at 36. 74 Mark C. Miller, supra note 60 at 36. 75 Mark C. Miller, supra note 60 at 36-7 76 Mark C. Miller, supra note 60 at 37. 77 Mark C. Miller, supra note 60 at pp. 38-9.

78 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

the Constitution Act, 1867, 30 & 31 Vict., c 3 (U.K.). 79 Supreme Court Act, R.S.C. 1985, c S-26, s. 4(1) (Can.).

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