The appointment process to the Supreme Court

by The Honourable Chief Justice Donald Brenner & Margaret Ostrowski QC

To be eligible for an appointment to the Supreme Court, one must be a member of the bar for at least 10 years. And an application form must be completed which can be obtained from the Commissioner for Federal Judicial Affairs, 8th Floor, 99 Metcalfe St., Ottawa, Ontario K1A 1E3. Upon receipt of the application form, the commissioner’s office reviews the form for the ten year statutory requirement and completes a preliminary check with the Law Society to ascertain whether an applicant is the subject of any suspensions or pending investigations. Once the applicant passes through this screen, the applicant is sent to the Judicial Appointments Committee in British Columbia, a committee of the Federal Ministry of Justice.

The Judicial Appointments Committee consists of seven members – a Canadian Bar Association nominee, a Law Society nominee, a nominee of the Chief Justice, a nominee of the BC Attorney General, and three Federal nominees. Its task is to independently assess the suitability of the candidates to become judges. It performs this function completely independently of the Minister of Justice and the Chief Justices. The Judicial Appointments Committee meets approximately every three months and there are usually about 10 to 12 applications to discuss at each meeting. The names of the applicants are circulated several months in advance of each meeting and each member on the Judicial Committee phones anywhere from five to 20 members of the bar and bench for an confidential assessment of each candidate. The number of phone inquiries of course varies with the locale. The Judicial Council then discuss their results of the phone inquiries at their meeting and assesses the candidates as highly recommended, recommended or not recommended. The meeting is also attended by a representative from the Ministry of Justice who then writes a report on the suitability of the candidate and forwards it to the Minister of Justice.

The names of the highly recommended and recommended are added to the list of those similarly previously assessed. The candidates are not told the result of the Committee assessment but are advised that the assessment has been carried out and that it will expire in two years after the assessment. After two years, an applicant must reapply if they wish their name to be considered.

Once in receipt of the recommended names from the Judicial Appointments Committee, the Judicial Affairs Advisor will consult with the Chief Justice regarding the particular needs of the court and the suitability of the candidate. When vacancies occur, the Minister of Justice solely selects the name or names that are to go forward to Cabinet for approval.

The average number of applications received for the past five years is 36 per year. The average number of applicants per year who are ranked highly recommended or recommended is eight. The average number of judges appointed per year for the past five years is five. (These statistics are for all applications that are processed through the Ministry of Justice, that is, applicants for BC Supreme Court, Court of Appeal and Federal Court.)

Though this is just a brief description of an important process to select our Supreme Court judges, we hope that it has served some usefulness in demystifying a selection procedure that has been in place for many years.

Our thanks to Chief Justice Donald Brenner and to Margaret Ostrowski QC for providing this article.

This article was published in the August 2001 issue of BarTalk. © 2001 The Canadian Bar Association. All rights reserved.