Appointing Alberta Judges: Question 6

By Natalie Simpson

The first of four constitutional questions in Alberta’s upcoming referendum asks voters to consider who appoints judges. Should the power to select judges to serve in Alberta courts rest solely with the provincial government, or should the federal government should also play a role? This post provides background knowledge about Alberta courts and judiciary, to help voters make an informed decision about Question 6.

Courts of Law in Alberta

Alberta has three courts: one provincial court (the Alberta Court of Justice), and two superior courts (the Court of King’s Bench and the Alberta Court of Appeal). Judges in every court apply provincial, federal, and constitutional laws. Decisions of the provincial court can be appealed to the superior courts, and decisions of superior courts in any province can be appealed to the Supreme Court of Canada.

Who can become a judge in Alberta?

Judges appointed to provincial or superior courts must have practiced law in Alberta for at least 10 years.

Applications are vetted by separate nomination committees. Committee recommendations to appoint provincial court judges are ultimately approved by the Minister of Justice for Alberta and the Lieutenant Governor in Council for Alberta.

The nominating committee for superior court appointments makes recommendations to the Minister of Justice for Canada, which are ultimately approved by the Governor General for Canada. This committee consists of seven members, including:

• One representative of the Chief Justice of Alberta,
• One representative of the Law Society of Alberta,
• One representative of the Canadian Bar Association,
• One member appointed by the Minister of Justice for Alberta, and
• Up to three members appointed by the Minister of Justice for Canada.

The people who serve on both nominating committees are judges, lawyers, and other professionals who live and work in Alberta. They are deeply familiar with the laws that apply in Alberta and with the standards of the legal profession in Alberta.

Who funds the courts?

An independent commission determines salaries for provincial court judges, paid by the province. Superior court judges are paid by the federal government, and their salaries are determined by the Judges Act, a federal statute. However, it is up to the province to fund the infrastructure required for all judges to perform their roles, such as maintaining court houses and employing support staff.

What is the referendum question asking?

Both the Alberta government and the federal government play a role nominating judges to superior courts in Alberta. Referendum Question 6 seeks input from the public on whether Alberta should pursue changes to the current process, so that the federal government no longer plays a role in appointing judges to superior courts. The question does not say whether the provincial government would continue the practice of seeking recommendations from nominating committees.

What could change?

Even if the majority votes yes, the Alberta government cannot change the current process on its own. Section 96 of the Constitution Act governs the appointment of judges to superior courts. Any change to the process would require amending the Constitution, which can only be done with the agreement of the federal Parliament and Senate along with seven provincial legislatures representing at least 50% of Canada’s population.

Why does it matter?

Because our Constitution grants power over different aspects of Canadian society to federal and provincial governments, everyone in Alberta is affected by laws and policies created by both the provincial and the federal governments and applied by judges in both provincial and superior courts. The administration of justice in any Canadian province is not the sole domain of a provincial government.

The independence of the judiciary is a fundamental component of the rule of law. Governments as well as individuals can be parties to lawsuits. For the law to be applied in a fair manner, judges cannot be subject to control by the executive or legislative branch of any government.

When deciding how to answer Question 6, voters must consider how judicial appointments to superior courts controlled exclusively by the Alberta government with no input from the Canadian government would affect the administration of justice in this province.

A majority yes vote on Question 6 would not immediately change Alberta’s judicial appointment process. It would signal to the government that voters want to push for amendments to Canada’s Constitution that would give the provincial government significantly more control over judges in all levels of Alberta courts.