Legal experts, francophone groups decry Alberta premier’s call for more input in federal judicial appointments

Canadian legal experts and francophone groups are criticizing Alberta Premier Danielle Smith’s calls for more input in federal judicial appointments and relaxing bilingualism requirements for Supreme Court judges as threats to judicial independence and language rights.  

In a letter addressed to the premier's office Thursday, the Canadian Bar Association and its Alberta branch expressed its “grave concerns” over Smith’s proposal.

“We are particularly concerned by your stated intention to ‘withhold funding to support any new judicial positions in the province’ until your demands are met,” the bar association’s letter said.

“Threatening to withhold this funding is not only unconstitutional, but also undermines the administrative autonomy of the courts, which is a core institutional safeguard of judicial independence.”

The statement follows a letter made public this week from Smith to Prime Minister Mark Carney, calling on the federal government to reform the selection process for federally-appointed judges. 

Part of Smith’s letter suggested a new four-person selection committee be formed with equal provincial and federal representation to help ensure judicial appointments "appropriately reflect Alberta's distinct legal traditions" and strengthen public confidence in the administration of justice.

The bar association, however, said such a committee would "fundamentally compromise” principles of non-partisanship, transparency and the preservation of judicial independence inherent in the appointment process.

Adèle Kent, a retired Court of King’s Bench of Alberta justice, said Judicial Advisory Committees in Alberta already do most of the heavy lifting in deciding who is qualified to become a judge, and they have a good balance of federal and provincial representation.

While the province is responsible for selecting judges to serve on the Alberta Court of Justice, the federal government makes selections for the Court of King’s Bench of Alberta, Alberta Court of Appeal and the Supreme Court of Canada.

The Office of the Commissioner for Federal Judicial Affairs in Ottawa is responsible for managing the process for appointing federally-selected judges, Kent said. The commissioner will send applications to the committee in Alberta, which reviews them and sends their recommendations back to the commissioner, she explained.

“That committee really does the hard work in deciding who is qualified to become a judge,” Kent told CBC Radio’s Calgary Eyeopener on Thursday. 

“They do a very thorough job in determining whether these candidates have the legal skills, the ethical standards, the work ethic to be judges,” she said.

Once the recommendations have been made, the commissioner passes them along to the federal minister of justice to decide who will be appointed. 

Kent said she is not sure what Smith’s letter means when it states Alberta has a “distinct legal tradition,” as the provinces and territories adhere to a similar legal framework.