Supreme Court of Canada - Appointment of Justices of The Supreme Court of Canada

Appointment of Justices of The Supreme Court of Canada

Justices of the Supreme Court of Canada are appointed by the Governor General-in-Council, a process whereby the governor general, the viceregal representative of the Queen of Canada, makes appointments based on the advice and consent of the Queen's Privy Council for Canada. By tradition and convention, only the Cabinet, a standing committee in the larger council, advises the governor general and this advice is usually expressed exclusively through a consultation with the prime minister. Thus, the provinces and parliament have no formal role in such appointments, sometimes a point of contention.

The Supreme Court Act limits eligibility for appointment to persons who have been judges of a superior court, or members of the bar for ten or more years. Members of the bar or superior judiciary of Quebec, by law, must hold three of the nine positions on the Supreme Court of Canada. This is justified on the basis that Quebec uses civil law, rather than common law, as in the rest of the country. The 3/9 ratio persists even though just 24 percent of Canada's population resides in Quebec. By convention, the remaining six positions are divided in the following manner: three from Ontario, two from the western provinces (typically one from British Columbia and one from the prairie provinces, which in turn rotates amongst the three, although Alberta is known to cause skips in the rotation, and one from the Atlantic provinces, almost always from Nova Scotia or New Brunswick.

The appointment of the most senior puisne justice to chief justice is a convention that has recently fallen into disuse. And there is also an attempt to appoint at least one justice straight from legal practice without having previously been a judge.

A Supreme Court Justice, as with all federal judges, may only sit on the bench until the age of 75 years.

In 2006, an interview phase by an ad hoc committee of members of parliament was added. Justice Marshall Rothstein became the first justice to undergo the new process. The prime minister still has the final say on who becomes the candidate that is recommended to the governor general for appointment to the court. The government proposed an interview phase again in 2008, but a general election and minority parliament intervened with delays such that the Prime Minister recommended Justice Cromwell after consulting the Leader of Her Majesty's Official Opposition.