- Ian Peach
- 15 minutes ago
- 7 min read
Late last month Alberta Premier Danielle Smith sent Prime Minister Mark Carney a letter, made public in the first week of February, seeking a role for the Alberta government in the selection of federally-appointed judges.[1] This is a reasonable request. Indeed, my understanding is that it has generally been common practice for the federal Justice Minister to seek the opinion of their provincial counterpart from the province for which they would be appointing a judge (as well as the head of that province’s law society) on the quality of the proposed appointee. There was even a modern attempt to place this practice on a constitutional footing: namely, the proposed amendment to section 101 of the Constitution Act, 1867 contained in the 1987 Meech Lake Accord, which would have instituted a new selection process for Justices of the Supreme Court of Canada. Specifically, the proposed section 101C stated:
(1) Where a vacancy occurs in the Supreme Court of Canada, the government of each province may, in relation to that vacancy, submit to the Minister of Justice of Canada the names of any of the persons who have been admitted to the bar of that province and are qualified under section 101B for appointment to that court. (2) Where an appointment is made to the Supreme Court of Canada, the Governor General in Council shall, except where the Chief Justice is appointed from among members of the Court, appoint a person whose name has been submitted under subsection (1) and who is acceptable to the Queen's Privy Council for Canada.[2]
Justin Trudeau did, in 2016, substantially revise the Judicial Advisory Committees that advised the federal Minister of Justice on judicial appointments, but the Alberta Judicial Advisory Committee, for example, includes a nominee of the provincial Minister of Justice, as well as a nominee from each of the Law Society of Alberta, the Canadian Bar Association, and the Chief Justice of Alberta, along with three nominees of the federal Minister of Justice.[3] There is, therefore, nothing particularly novel or radical about Premier Smith’s request that the federal government undertake “meaningful engagement and collaboration” with the provincial government in making superior court judicial appointments.[4] Given that Prime Minister Carney seems to be making an effort to improve intergovernmental relations, I would be surprised if he weren’t willing to consider and discuss such a request with Premier Smith.
This being the case, one must ask why Premier Smith chose to make her case for what is, in truth, a reasonable reform in a way that any reasonable person would see as making its acceptance impossible. The first problem with her letter is one of factual inaccuracy. Premier Smith claims that Alberta has “distinct legal traditions” that must be reflected in the judicial appointments to the province’s courts.[5] But is this a fair assessment? One province, and only that one province, Quebec, has legal traditions that are meaningfully distinct from those of other provinces. Quebec has a civil-law legal system with its own civil code, based on the French civil-law system, whereas all of Canada’s other jurisdictions share the British common-law system. This doesn’t mean that laws don’t differ from one common law province to the next, of course, but these differences don’t make the provinces legal traditions or legal culture truly “distinct.”
The Premier also claims that providing the Alberta government with a formal role in federal judicial appointments would “strengthen public confidence in the administration of justice, promote national unity within Alberta and help ensure judicial decision-making reflects the values and expectations of Albertans.”[6] These are fascinating assertions, but they are no more than that; if I were the Prime Minister, I would want some evidence to back up these assertions before I concluded that I should respond to them through substantive reforms to the judicial appointment process
Premier Smith also stated in her letter that “[i]n comparable federal systems such as the United States and Australia, the appointment of state-level superior court judges rests with state governments rather than the federal government. In this respect, Canada remains an outlier, and a discussion on reform is long overdue.”[7] Of course, there are many more federations to compare Canada’s appointment process to than just the United States and Australia, and different federations use a variety of different processes for making judicial appointments. Does it really matter if Canada is an outlier among other federations, though? Whatever one’s personal opinion is, what matters is that federal appointments to provincial superior courts is the process set out in section 96 the Constitution Act, 1867.[8] I cannot imagine that providing the federal Cabinet with the power to appoint superior court judges in Canada is an accident or a random decision; while none of us today were alive in 1864 to 1867, we must assume that the Fathers of Confederation made a conscious choice that judges in our federation would be appointed by the federal government.
Thus, even if there is evidence to back up Premier Smith’s assertions about what Albertans think about judicial appointments, that only opens a debate, not concludes it. Our governments, and we as citizens in Canadian society, would need to have a serious discussion of whether judicial decision-making should reflect the values and expectations of local communities or if it is better for justice, the rule of law, and national unity for judicial decision-making to reflect the set of values of the national society throughout the nation before we change the judicial appointment process in a fundamental way. Is Premier Smith proposing that we engage in a national discussion of reforming the Constitution to amend section 96 of the Constitution Act, 1867? It is certainly her right to propose a constitutional amendment, but one must also ask if the other partners in the federation that must also approve an amendment to section 96 are sufficiently dissatisfied with the current judicial appointment process that they would be prepared to engage in a constitutional negotiation over judicial appointment processes. Saying that such a discussion is long overdue is a long way from proposing a discussion among the partners in the federation around amending the Constitution.
The outcome of any such discussion is, to my mind, far from certain. I certainly accept the argument that all those who have the authority to make decisions in the justice system (both civil and criminal) must be prepared to understand and consider the particulars of those who come before them, to ensure that legal decision-making is just. On the other hand, one could well make the argument that ensuring that those appointed to judicial office have a shared professional ethic, no matter where in the federation they sit, is the best way to ensure that all who come before the justice system are treated equally by it and can have confidence in their equality before and under the law.
The biggest problem with Premier Smith’s letter, though, is the threat that “Alberta’s government will not agree to provide the necessary funding to support any new judicial positions in the province until such engagement and collaboration [as she requested] are provided.”[9] This threat is likely unconstitutional and serves merely to turn her reasonable request into a poison pill that no Prime Minister should be prepared to agree to. Not only does section 96 of the Constitution Act, 1867 give the federal government the power to appoint judges to the superior courts of the provinces, section 100 gives Parliament the power to determine the salaries of the judges of the superior courts of the provinces.[10] On the other hand, the provincial governments have the authority, in paragraph 92(14), as part of their jurisdiction over “the administration of justice,” to constitute, maintain, and organize the courts of the provinces.[11]
This authority, however, is actually an obligation, as the principle of judicial independence is a principle of our constitutional law, stretching back to the British Act of Settlement of 1701.[12] For a provincial government, in exercising its jurisdiction under section 92(14), to refuse to provide any necessary funding to support new judges who the federal government may appoint is a violation of the constitutional principle of judicial independence and, therefore, unconstitutional. As Chief Justice Lamer said in the Reference re Remuneration of Judges of the Provincial Court of PEI, “the jurisdiction of the provinces over ‘courts,’ as that is used in s. 92(14) of the Constitution Act, 1867, contains within it an implied limitation that the independence of those courts cannot be undermined.”[13]
Premier Smith’s threat to not fund any new judicial positions is exactly that, a threat to undermine the independence of the courts by not providing them with necessary funding. It is, therefore, unconstitutional — and glaringly so. Given the reasonableness of her request and the patent unreasonableness of her threat, one is left to wonder what Premier Smith actually hopes to achieve. Was this a poorly executed attempt to foster inter-governmental discussion on a legitimate question about provinces’ involvement in federal judicial appointments? Or was this an attempt to ensure the Prime Minister’s refusal, to create a constitutional crisis (or at least, an appearance of inter-governmental friction)?
***
Ian Peach is the Consultation Manager for the Wolastoqey First Nation in New Brunswick
[1] “Letter from the Premier of Alberta to the Prime Minister of Canada” (23 January 2026), online: <https://www.alberta.ca/system/files/Jus-Premier-Smith-Letter-to-PM-Carney-judicial-appointments-Jan-23-2026.pdf> [Letter from the Premier].
[2] Meech Lake Accord, Constitutional Accord, 3 June 1987, s 6. Available online: <https://www.canada.ca/en/intergovernmental-affairs/services/federation/1987-constitutional-accord.html>.
[3] See Office of the Commissioner for Federal Judicial Affairs Canada, “Federal Judicial Advisory Committee for Alberta”, online: <https://www.fja-cmf.gc.ca/appointments-nominations/committees-comites/members-membres/mem-ab-eng.html>.
[4] Letter from the Premier, supra note 1.
[5] Ibid.
[6] Ibid.
[7] Ibid.
[8] The Constitution Act, 1867, 30 & 31 Vict, c 3, s 96 [Constitution Act, 1867].
[9] Letter from the Premier, supra note 1.
[10] Constitution Act, 1867, supra note 8, ss 96, 100.
[11] Ibid, s 92(14).
[12] Reference re Remuneration of Judges of the Provincial Court of PEI, [1997] 3 SCR 3 at para 81 [Provincial Judges Reference].
[13] Ibid at para 108.