Albertans will have a lot to consider come October’s referendum, with various topics at play, ranging from immigration and separation to issues that may not be top of mind. One such question is the appointment of judges to Alberta’s higher courts, the Court of King’s Bench and the Court of Appeal, which handle significant criminal and civil cases and have the authority to review provincial court decisions.
Currently, judges for these courts are appointed by the federal government, a practice dating back to Confederation in 1867. Alberta aims to change this system, arguing that provinces should have a direct say in selecting judges to interpret and apply their laws. However, critics question whether the existing process already provides Alberta with meaningful input.
Although earlier proposals on this matter have been rejected by Ottawa, the upcoming referendum will serve as an endorsement for Alberta to pursue constitutional changes, which would require parliamentary support and backing from at least seven provinces representing half of Canada’s population.
The referendum marks the latest effort by Alberta to gain more control over judicial appointments. The provincial legislature passed a motion earlier this year seeking a constitutional amendment for federal selection of judges from a province-approved list. The referendum goes a step further, asking if Alberta should have the power to appoint judges itself.
In advocating for greater provincial involvement, Alberta has aligned with Ontario, Quebec, and Saskatchewan in urging Prime Minister Mark Carney to give provinces a more formal role in judicial appointments. Saskatchewan Premier Scott Moe emphasized the importance of provinces knowing their communities best and ensuring that courts reflect each province’s realities.
The current process for selecting judges in federally appointed courts in Alberta involves a judicial advisory committee (JAC), which screens potential candidates. The committee includes nominees from Alberta’s chief justice, the Law Society of Alberta, the Canadian Bar Association, and Alberta’s justice minister, as well as three federal government nominees. The committee evaluates candidates and sends recommendations to Ottawa for the federal justice minister to make the final selection.
While the Canadian Bar Association defends the process as rigorous and merit-based, some critics argue that the structure can introduce bias. Nonetheless, Canada’s judicial appointment system is considered less politicized compared to the United States.
Alberta Justice Minister Mickey Amery contends that provinces lack a strong voice in superior court judge appointments, prompting the referendum to seek support for changing the system. Premier Danielle Smith has highlighted the importance of judges reflecting Alberta’s legal traditions, sparking debates on the role of the judiciary and the need for non-partisan decision-making.
The referendum also aims to address concerns about delays in federal judicial appointments, with Alberta pushing for a more expedited process. Despite a positive referendum outcome, Alberta would not immediately gain the authority to appoint judges, but it would signal continued efforts by the government to pursue reform in judicial appointments.