Alberta’s government is calling on Ottawa to change the Constitution to give provinces more of a say in how judges are appointed at the provincial level.
It comes after Premier Danielle Smith and the premiers of Ontario, Saskatchewan and Quebec wrote a letter to Prime Minister Mark Carney last week saying they would like to see only judges who are approved and recommended by their governments be appointed.
That request was quickly brushed aside by federal Justice Minister Sean Fraser, and Alberta’s government says it now needs to up the ante.
Smith and Justice Minister Mickey Amery told reporters Monday that the government will pass a motion in the Alberta legislature later this week calling for the necessary changes to the Constitution to have their call put into place. They’re hoping other provinces, Parliament and the Senate will do the same.
Quebec had passed its own motion nearly a year ago, and Smith and Amery said their motion would be identical.
“Thus far we’ve not had the progress that we were hoping for, especially through the sort of diplomatic routes,” Amery said of why the government was now formally calling for an amendment to the Constitution.
“We’re now looking for some more meaningful and consequential changes through the motion, and hopefully through the support of the Parliament.”
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The Constitution currently states Ottawa alone has the right to appoint provincial superior and appeal court judges. Changing it could be done in a couple of ways, such as approval in the House of Commons, the Senate and by at least seven provinces whose combined population represents more than half of all provinces combined.
Another option is constitutional changes that affect one or more, but not all, provinces.
The judicial appointment process put forward by the premiers has been criticized as a way to politicize the courts, but Smith says it’s important for provinces to have a say in how justice gets delivered.
“It’s time for Alberta to have a real voice in selecting the judges who serve Albertans,” she said.
Smith also reiterated her argument Monday that Canada is an outlier compared to some other countries, including the U.S. and Australia, where state- or provincial-level judges are appointed by state or provincial governments.
“Addressing this gap will strengthen public confidence in the justice system and ensure provinces have a meaningful voice in appointments that shape how justice is delivered in their communities,” Smith said Monday.
Bianca Kratt, the president of the Canadian Bar Association, which represents more than 40,000 lawyers, judges and other legal professions, said in her own letter to Carney last week that comparing Canada to the U.S., for example, wasn’t applicable.
She said the justice system in each country works according to the respective constitutional framework and in Canada provincial judges have the authority to strike down federal law, whereas state-level judges are largely limited to state matters.
Opposition NDP critic Irfan Sabir told reporters Monday that Smith had “no credibility” when it came to upholding the justice system, noting various instances where she has criticized judges as being “activists” or called them “unelected judges.”
“Here we are supposed to trust them that they will do something that will strengthen our judiciary? No, this government cannot be trusted,” Sabir said.
“They just find every opportunity that they can (to) pick some needless fight with the federal government.”
Smith had sent another letter to Carney earlier this year asking for judicial reform, and threatened to withhold some court funding should Ottawa ignore the call. Amery said the threat wasn’t off the table but that normal funding had been maintained for the new fiscal year.
The first proposal, which was also quickly dismissed by Fraser, would see a new type of committee be struck to assess potential judicial appointees in Alberta. It would feature an equal number of provincial and federal representatives, Smith had said.
The existing seven-person committee that assesses applications from lawyers to be appointed provincial court judges and makes recommendations to Ottawa features one representative from the provincial government and three from the federal government.
It also includes appointees from Alberta’s chief justice, the provincial law society and the Canadian Bar Association’s Alberta chapter.
Similar committees exist for every province and territory.
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