Model of independence
27 August 1996
Unlike the US, Canada does not separate its federal and state courts and judiciaries but has a mixed system. Each province has a court of appeal, a high court (often called Court of Queen's Bench) and a provincial court and all have civil and criminal jurisdiction. Courts are organised and paid for by provincial government but the federal government appoints and pays for appeal and high court judges.
Above the provincial courts of appeal is the Supreme Court of Canada which, unlike the US Supreme Court, can deal with questions involving provincial as well as federal legislation. In Canada, provincial attorney generals are also ministers of justice, and combine functions shared in England by the Home Secretary, the Attorney General and the Lord Chancellor. As minister of justice, an attorney general advises the govenor general on provincial and federal judicial appointments.
Although Canadian judicial appointment is more similar to the English than the US system, recommendations are made after a more organised and independent process than in the UK. Nobody is appointed unless they have been recommended by a judicial appointments committee, which is made up of representatives of the legal profession and the judiciary, and lay members appointed by the minister of justice.
The criteria committees apply are publicly known and consider not only a candidate's advocate experience but also non-mainstream legal experience and academic and corporate experience. An applicant's politeness, tact, common sense and appreciation of social issues arising in litigation are also considered. Following an interview, candidates are graded as recommended, highly recommended or not recommended, and the committee presents its decision to the minister, who then chooses the applicant.
While there are no quotas for taking on women or ethnic minorities to the judiciary, both are encouraged to apply. In Ontario between 1989-1992, for example, 41 per cent of judges appointed were women. And in 1992 the Ontario minister of justice rejected all names first proposed for an appointment because the court was in a French-speaking area and none of the applicants was bilingual.
Canada also has judicial councils, established by statute at federal and provincial level. These consist of a chief justice and several senior judges who act as a corporate body. Judicial councils are largely responsible for the protection of the judiciary's independence and also lay down guidelines about acceptable judicial behaviour.
If a complaint is made against a judge it can be referred to a council, which will arrange for it to be investigated. A council can suspend a judge while a complaint is investigated and has the power to reprimand a judge or recommend his dismissal. Judges are entitled to a full hearing before a recommendation is made for their removal and a parliamentary resolution is needed to dismiss them. But in practice it is likely a judge would resign before matters reached this stage.
The Canadian system is in strong contrast to the English one where the Lord Chancellor has been described as acting as "prosecutor, judge and executioner" in dealing with complaints about judicial behaviour.
As complaints about the judiciary rise in the UK, the question of who judges the judges must be addressed. Another worry is how such judgements can be combined with a system which ensures the independence of the judiciary. The Canadian appointments and disciplinary system may offer a role model which those seeking reform should examine closely.