Appointing judges offers a potential lasting influence even after a federal party is no longer in power. Supreme Court of Canada Justices are seen during a welcome ceremony on Feb. 19, 2024.Adrian Wyld/The Canadian Press
The federal Conservatives plan to appoint judges who will take a harder line on sentencing if the party wins the federal election, a shift toward a more ideological approach to the courts.
A tough-on-crime ethos is central to Conservative Leader Pierre Poilievre’s election campaign. Early this year, and again on the campaign trail in April, he promised the “biggest crackdown on crime in Canadian history.”
That thinking extends to judicial appointments.
“We will appoint judges who will put the victims of crime first and put dangerous violent criminals where they belong – behind bars,” Conservative spokesman Sam Lilly said in a statement to The Globe and Mail.
Appointing judges offers a potential lasting influence even after a federal party is no longer in power. The prime minister, justice minister and cabinet name judges to top courts across the country, including the Supreme Court of Canada and the provinces’ appeal and superior courts.
As of Feb. 1, judicial appointments made by the Liberals accounted for a majority of judges on federal benches for the first time since they were elected in late 2015 – 53 per cent, or 642 of 1,203 judges. In the previous look at the federal judiciary, in early 2024, the majority of judges had been appointed before 2016. The slow shift shows the trailing wave of influence a party in government have on the judicial system.
Mr. Poilievre’s plan for stricter judges echoes that of then-prime minister Stephen Harper, under whom Mr. Poilievre was a long-time MP and later a cabinet minister. In 2007, a year after Mr. Harper became prime minister, he said in the House of Commons that the Conservatives aimed to “crack down on crime” and wanted to pick judges “in correspondence with those objectives.”
Eric Adams, a law professor at the University of Alberta, said appointments to the top courts tend to reflect a tilt in a political direction rather than obvious ideology. There’s also a long tradition of judges whose rulings don’t reflect the party who named them to the bench. But those in power maintain control over the judicial roster.
“They can really change the character and the composition of the Canadian judiciary,” said Prof. Adams.
Judicial appointments are not often debated or detailed on the campaign trail. The Globe asked the Liberals and Conservatives about their proposals.
The Liberals, in a brief statement, said they would work to cut judicial vacancies to zero.
This goal is within reach. As of April 1, vacancies were at 1.5 per cent, the lowest level in data going back to 2003. After the 2021 election, the Liberals allowed vacancies to climb to a record, with nearly 10 per cent of all judges’ chairs empty by early 2023. The failure sparked a rare rebuke from Supreme Court Chief Justice Richard Wagner.
Unlike in the United States, where it can be obvious which party appointed a judge, Canada has a largely non-partisan cast on the bench. Legal debates tend to focus on how to interpret the Charter of Rights and Freedoms and whether the courts should be more or less deferential to lawmakers.
Across the legal profession, from lawyers to judges, people are loath to categorize a particular Canadian judge by party of appointment. They fear such labels would lead to a slow deterioration into a U.S.-like situation.
Since the late 1980s, judges appointed to the federal benches – excluding the Supreme Court – have been first assessed by judicial advisory committees, on which three of seven members are federal appointees. Governments generally pick judges from committee lists. After the Conservatives were elected in 2006, they tightened the process to give the party more power over the process and the judges they chose. After the Liberals were elected in 2015, they bolstered the committees’ independence and added a focus on diversity.
Increased diversity is former prime minister Justin Trudeau’s judicial legacy. In one example among current judges, of those appointed before 2016, 0.8 per cent are Indigenous. About 5 per cent of the population is Indigenous. Of judges appointed after 2016, 3.2 per cent are Indigenous.
“We need diversity on the bench,” said Paul Champ, a human-rights lawyer in Ottawa. Canada has a “strong judiciary,” he said, adding: “Most lawyers would say that, regardless of political stripe.”
The Liberals in 2016 also instituted a long-planned change in the appointment of Supreme Court justices. For decades, the process was opaque. The prime minister would tap someone on the shoulder. Reforms were proposed in the early 2000s and Mr. Harper opened the process somewhat. Several new justices answered some questions at an ad hoc parliamentary committee after they were named.
Mr. Trudeau used an independent advisory board for his six selections to the top court. In a first in the top court’s long history, aspiring justices submitted job applications. The advisory board interviewed candidates and handed a short list to Mr. Trudeau.
Some legal experts have suggested top-flight jurists might not want to submit the required detailed application, but others say the expanded process produces a wider pool of candidates.
“The worry is if we go tap on the shoulder, we have many excellent candidates who may never be considered,” said Erika Chamberlain, a law professor at Western University and advisory board member in 2021 when the Liberals named highly regarded Mahmud Jamal to the top court. “It’s really important for people to be deliberate about their interest in the position.”
The next scheduled opening on the Supreme Court is 2028, when Justice Malcolm Rowe reaches the mandatory retirement age of 75. Mr. Trudeau appointed him in 2016 and Justice Rowe is part of the long tradition of judges carving their own path. There could be a spate of change in the early 2030s, when five justices reach 75.
Mr. Trudeau’s Supreme Court appointments accounted for a majority as of 2022. Mr. Harper named eight judges to the Supreme Court and for a decade, from 2012 to 2022, his appointments represented a majority. Some people in the legal community had worried at the time about an ideological shift in the courts but the Supreme Court often ruled against Conservative priorities, legislation and beliefs.
The court more recently, with its majority appointed by Mr. Trudeau, likewise hasn’t been overly favourable to the Liberals. In 2023, it ruled against the party’s environment review law, the Impact Assessment Act, finding it in part unconstitutional.