Canada’s federally appointed judges, and the process by which they are appointed, leave much to be desired.
Shortly after becoming Chief Justice, Richard Wagner declared himself to be “proud” of the Supreme Court of Canada being “progressive.” In 2022, he publicly denounced the Freedom Convoy as “anarchy,” and “hostage-taking,” even though court cases arising from this peaceful protest might eventually come before him for resolution. His politician-style tours of the country have been described by the Canadian Press as a “roadshow.” Most leaders wait until they have retired before a portrait or bust of their image graces their place of work. In contrast, Chief Justice Wagner already has his image captured in a bronze bust valued at $18,000. When asked whether this gift raises concerns about a conflict of interest, Chief Justice Wagner relied on wilful ignorance, stating “I don’t know who paid for that, so how can there be a conflict of interest?”
The problem is bigger than one judge. In Hansman v. Neufeld, Justice Andromache Karakatsanis asserted as a fact that “[w]hile gender was once understood only in the binary of ‘male’ or ‘female,’ today, society’s understanding of gender has broadened to encompass a spectrum of gender identities, modes of expression, and related terminology, all of which continue to evolve.” Her progressive colleague Sheila Martin gratuitously referred to a woman as “a person with a vagina” in R. v. Kruk, a ruling endorsed by five other Supreme Court Justices.
Public trust in the judiciary, particularly in Alberta, is justifiably at an all-time low.
Canadian judges routinely grant bail to violent criminals, while peaceful protester Tamara Lich spent a total of 49 days in jail prior to her trial. Unsurprisingly, provincial premiers find themselves wishing that they could direct or guide our judges, in order to protect their citizens from criminals who pose a risk to public safety.
While fewer than 1% of Canadians donate to political parties, one fifth of Canadian judges have done so, with three quarters of them donating to the Liberal Party.
The federal government actively pursues quotas in the appointment of judges, ostensibly to represent or “reflect” Canada’s diversity. This overt repudiation of merit is carried out by a seven-person “Judicial Advisory Committee” in each province. The vast majority of this Committee’s members are woke progressives appointed by the federal government, the Law Society and the Canadian Bar Association. Only one of the seven members is appointed by the provincial government.
The Law Society of Alberta champions “equity, diversity and inclusion” rather than the rule of law, to the point of forcing Alberta lawyers to take a political indoctrination course about “colonization” and “decolonization” as a condition of being allowed to practice law. Other Law Societies across Canada are equally woke. The Canadian Bar Association long ago abandoned neutrality by taking left-wing positions on a host of political issues (e.g. gun control, abortion) that have nothing to do with the practice of law. While still calling itself the Canadian Bar Association, this group should be more honest with the public and call itself the Canadian Liberal-NDP Lawyers’ Association. Unsurprisingly, the judges appointed through this Judicial Advisory Committee process do not reflect the values and expectations of Albertans.
The Supreme Court also seems to be suffering from a productivity problem, hearing fewer cases than before and taking more time to render decisions.
Since 2023, only fluently bilingual lawyers may be appointed to the Supreme Court. This effectively renders large numbers of promising legal minds outside of Quebec ineligible to serve on Canada’s highest court. In Western Canada especially, judges and senior lawyers have not had the privilege of growing up with ready access to majority-Francophone areas, making it far more difficult for them to become bilingual than what it is for lawyers in Ontario and Quebec.
When asked to defend the Charter rights and freedoms that were violated by lockdowns, numerous Canadians judges wrote the flawed media narrative into their court rulings rather than basing their decisions on the evidence placed before them in court. Believing what they saw and heard on the CBC, judges readily rubber-stamped the government’s violations of Charter freedoms. For example, in Gateway v. Manitoba, the judge completely ignored the expert report placed before the court by Manitoba’s former Chief Public Health Officer, Dr. Joel Kettner. Dr. Kettner’s expert report eviscerated Manitoba’s arguments in favour of lockdowns. Rather than providing reasons for rejecting Dr. Kettner’s report (which would have been a legitimate and appropriate exercise of judicial power), the judge instead pretended that the report didn’t exist, and made no reference to it in his ruling. Nowhere in his lengthy ruling did the judge explain why he considered Manitoba’s evidence to be better or stronger than the evidence put before the court by Canadians whose Charter freedoms were violated. How can Canadians still trust their courts after rulings like these have been rendered?
Another very serious problem with Canada’s legal system is that it usually takes years to obtain a judgment. Plaintiffs and defendants, victims of crime and those accused of committing crimes, Canadians asserting their Charter rights and freedoms – these citizens must wait for a year (or two, three or four years) just to get a court ruling. Most of the judges I know are hard-working, and strive to render their judgments as soon as possible. The proverbial “bad apples in the barrel,” judges who are lazy or incompetent or both, are a small minority.
Canada has too few judges, and most judges have only very minimal staff support.
In contrast, many American judges have law clerks working for them: full-time staff lawyers who enable judges to render their rulings in weeks or months, rather than in years. Canada’s federal government appoints and pays judges, but provincial governments are responsible for the administration of the courts, including court infrastructure and support services.
If Alberta provided one full-time lawyer to work for each of the 106 federally appointed judges (17 Court of Appeal, 89 Court of King’s Bench), many decisions would be issued in weeks or months, rather than years. Providing law clerks to 106 Alberta judges would cost about $20 million per year (or less), a tiny sliver of Alberta’s annual budget of $75 billion (or more). Justice delayed is justice denied. Twenty million dollars is a small price to pay for more timely justice for Albertans.
Albertans deserve better judges, and Premier Danielle Smith is right to demand change.
It is neither unfair nor contrary to Canada’s Constitution for Premier Smith to ask for a more collaborative decision-making process. For the appointments of the three Supreme Court Justices from Quebec, a specific board is formed, made of two members appointed by the federal government and two appointed by Quebec. The same, or something similar, could be done for Alberta and other provinces.
Unfortunately, it’s not clear that greater Alberta participation in the selection of federally appointed judges would make much of a difference, considering how the Judicial Advisory Committee is so heavily biased towards appointing woke ideologues.
Premier Smith’s desire for better judges is justified and honourable. Her threat to reduce funding for the administration of courts in Alberta, while motivated by the best of intentions, is misguided. As a concrete, practical step to facilitate shorter wait times for court rulings, Alberta could immediately budget $20 million to provide Alberta’s judges with full-time staff lawyers, resulting in Albertans receiving judgments in weeks or months, rather than years. The Alberta government could do this tomorrow, without needing permission from the federal government or from other provinces.
