The Judiciary

Judicial independence

Judicial independence is a cornerstone of the Canadian judicial system. That is why, under the Constitution, the judiciary is separate from and independent of the other two branches of government, the executive and legislature. Judicial independence guarantees that judges will be able to make decisions free of influence and based solely on fact and law.

Nothing is more important in our justice system than having independent judges.

The principle of judicial independence has three components:

Several institutions have been established to support judicial independence: these include the Canadian Judicial Council, the Office of the Commissioner for Federal Judicial Affairs, the National Judicial Institute and the Courts Administration Service. They help keep the government and the judiciary separate in areas like discipline, pay and benefits, and continuing education for judges.

How are judges appointed?

The federal government appoints judges to the federal courts, the superior courts of the provinces and territories, and the Supreme Court of Canada. All federally appointed judges are appointed by the Governor General or the Governor in Council. Appointments are made on the advice of the Prime Minister for judges of the Supreme Court of Canada and chief and associate chief justices of provincial and territorial superior courts; and on the advice of the Minister of Justice for all other superior court judges.

The provincial and territorial governments appoint judges to provincial and territorial courts. There is no federal government involvement in the appointment of these judges.

Judges appointed by the federal government are appointed through processes administered by the Office of the Commissioner for Federal Judicial Affairs, which operates at arm’s length from the rest of government, including the Department of Justice Canada.

In the case of the Supreme Court of Canada, candidates who apply are assessed by an independent and non-partisan advisory board established when a vacancy on the Court arises. This board is tasked with preparing a shortlist of highly qualified candidates for the Prime Minister’s consideration.

To inform the Prime Minister’s decision, the Minister of Justice consults on the shortlisted candidates with the Chief Justice of Canada, relevant provincial and territorial attorneys general, relevant Cabinet ministers, opposition Justice Critics, as well as members of both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs.

In the case of provincial and territorial superior courts, candidates who apply are assessed by one of 17 independent and non-partisan judicial advisory committees (JACs). There is at least one JAC for every province and territory. Due to their population size, Ontario has three JACs and Quebec has two.

JACs are designed to obtain and reflect local input on the assessment of candidates. Each JAC is composed of seven members representing the provincial or territorial judiciary, the provincial or territorial government, the provincial or territorial legal community and the general public. Four members are chosen from individuals nominated by provincial entities: one by the provincial attorney general, one (a judicial member) by the province’s chief justice, one by the provincial law society and one by the provincial branch of the Canadian Bar Association. Three members are nominated by the Minister of Justice through an open application process and are typically residents of the province or territory in question.

JACs assess each applicant as either “highly recommended”, “recommended” or “unable to recommend”. An assessment report is prepared for applicants assessed as “highly recommended” or “recommended”. The recommendations and assessment reports are provided to the Minister of Justice, who typically consults with the chief justice and attorney general of the province or territory in question.

Though the appointments are made by the federal government, the process is strongly informed by provincial and territorial input.

What training do judges receive?

In general, most judges have spent years in courtrooms or in the practice of law, and have extensive knowledge of court processes and the role of the judge. Once they are appointed, they can refine that knowledge by enrolling in educational programs at both the provincial/territorial and federal levels on all aspects of judging, as well as specific substantive areas of the law. The National Judicial Institute delivers programs for all federal, provincial, and territorial judges. The Institute is funded by each level of government and regularly offers courses for new judges.

Judicial conduct

Each jurisdiction in Canada has a judicial council that is responsible for promoting and administering professional standards and conduct. For provincially and territorially appointed judges, each province or territory has a judicial council. Its members include judges, lawyers, and members of the general public. Judicial councils develop policies and codes of conduct to provide guidance for judges.

The Canadian Judicial Council (CJC) is responsible for federally appointed judges. It consists of the chief justices and associate chief justices of all the federal courts and provincial and territorial superior courts. It promotes efficiency, consistency, and quality judicial service in these courts. One of the CJC’s tasks is to investigate complaints and allegations of misconduct of federally appointed judges. The CJC has also developed a set of Ethical Principles for Judges to help judges ensure that they maintain their independence, integrity, and impartiality.

If it finds evidence of serious misconduct, the CJC may recommend to the Minister of Justice that the judge be removed from office. The Minister of Justice may then seek the necessary approval of both the House of Commons and the Senate to have the judge removed from office. The removal processes for provincial and territorial judges vary by jurisdiction, but are similarly developed to protect judicial independence and ensure that the process operates independently.

Relevant laws relating to the judiciary

The manner in which federally appointed judges are appointed, compensated and removed is governed primarily by Part VII of the Constitution Acts of 1867 and 1982  and the Judges Act. The Justice Laws website provides the texts of these acts. Provincial and territorial statutes and regulations can be found on the websites of the respective jurisdictions.

The following organizations also support judges in Canada: