The Quebec government manages all the courts in the province. However, while it appoints judges to the Court of Québec and municipal courts, it doesn’t do this for the Court of Appeal of Quebec or the Superior Court of Québec. This responsibility falls on the federal government. In this article, we explain why that is.
On April 8, the issue of appointing judges made the news again. The Quebec government is asking for more power to choose judges for all courts in the province. This isn’t a new request – former Premier of Quebec Maurice Duplessis asked for the same thing in his time.
The foundation of the Canadian court system
The British North America Act of 1867 (BNAA) laid the foundations of the Canadian court system. The federal government’s responsibility to choose judges stems from this Act.
According to Patrick Taillon, a constitutional law professor at Université Laval’s Faculty of Law, two opposing visions were put forth during the negotiations of the Act. As a result, “an imperfect compromise was reached.”
On one end, Quebec and the Maritime provinces (to a certain extent) wanted federalism, a political system where the powers of government are split. These provinces wanted the federal power to be decentralized.
On the other end, Sir John A. MacDonald and his allies wanted a “mini British empire,” where power was hierarchical. The federal government would have power over the provinces, which would retain their autonomy but be inferior and subordinated to the federal power. According to Prof Taillon, this model was inspired by the United Kingdom’s relationship with its colonies.
The federal government appoints judges
In Canada, judges appointed by the federal government can rule on both federal and provincial law. This is different from the United States, where separate court systems handle federal and state matters. According to Prof Taillon, “We wanted to do as the British do – that is, have a single judicial system where courts could hear all types of cases.”
Exceptions were added later on, he points out. However, the principle is still to have judges who can decide on all areas of law, such as family, employment and constitutional law. “We doubled our governments, doubled our parliaments, but we haven’t doubled our court system,” sums up Prof Taillon.
The appointment process
The Judges Act sets rules for the appointment of judges. However, this law only sets the eligibility criteria to become a judge. So, are there no laws or regulations governing the federal government’s appointment process? Claude Provencher says that this is exactly the case. Mr. Provencher is a lawyer and policy advisor to the Privy Council Office and the Commissioner for Federal Judicial Affairs, where he oversaw the appointment process for federal judges.
According to Prof Taillon, the rules for the appointment of judges at the Court of Appeal of Quebec and the Superior Court of Québec change every time a new federal government takes power. This has been the case for decades. However, the federal government can only introduce half-reforms, which Prof Taillon qualifies as “paraconstitutional.” This is the case because part of the process is protected by the Constitution.
Thus, although the appointment process can be modified from time to time, ultimately the responsibility to appoint judges falls to the Crown – and therefore, the federal government.
Additionally, the Quebec government selects judges from a short list of three candidates, while the federal government draws from a larger pool. According to Prof Taillon, this gives federal politicians “a lot more discretion.” By contrast, he explains that “when you have a short list of candidates, the politician still has a choice, but that choice is more restrained.”
Is this a bad thing?
Why does it matter that the federal government chooses judges to the Court of Appeal of Quebec and the Superior Court of Québec?
To answer this question, Prof Taillon uses a hockey analogy. “What if every time Boston played a match against Montreal, the general manager of the Boston team got to choose the referees? What would that say about institutional independence? Even if the referees were competent, the optics wouldn’t look good.”
Prof Taillon believes that a co-appointment process – where the federal and provincial governments would jointly choose the judges of the Superior Court and Court of Appeal – would be an acceptable compromise. He argues that this approach would create “a judicial system with a more centrist balance of power between the federal and provincial governments.”
He asserts that this approach wouldn’t require reopening the Constitution. He cites Brian Mulroney’s government as an example, which named Supreme Court judges in collaboration with the provinces.