Oh, Canada! Lawsuit alleges that country’s method of selecting federal judges is unconstitutional

The Canadian nonprofit Democracy Watch has filed a new lawsuit in federal court in Toronto, alleging that the country’s method of choosing federal judges violates the Canadian Constitution. Specifically, Democracy Watch claims that the process consolidates too much power in the hands of the Minister of Justice and Attorney General of Canada, a single cabinet position which is politically appointed.

Under the current appointment process, provincial advisory committees (most of whose members are appointed by the justice minister) submit to the justice minister a list of candidates for each judicial opening. The justice minister then consults with other cabinet members and members of Parliament from the governing party. After consultation, the justice minister has the final choice for appointment.

This certainly sounds like the justice minister has enormous leverage, especially since there is no obligation to consult with opposing parties or to seek out views from outside the minister’s inner circle. In this respect, the process may preclude outstanding candidates from being considered, and therefore may have an effect on the overall quality of the judiciary. Whether this is truly a constitutional problem or merely a policy one, I cannot say. But the case will be worth following, both for the ultimate result and for how Canadian federal judges address delicate questions regarding the constitutionality of their own appointments.

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