As 2017 draws to a close, so does an important era in Canadian legal history. The Right Honourable Beverley McLachlin, P.C., Chief Justice of Canada, announced her retirement from the bench beginning on Dec. 15. She was the longest-serving Chief Justice in Canadian history. With 17 years as Chief Justice, her tenure far exceeds that of others who have served for about three to 12 years. On Nov. 29, the Government announced the appointment of Justice Sheilah Martin, from Alberta, to the Supreme Court of Canada. On Dec. 12, Prime Minister Trudeau named the most senior judge from Quebec, Justice Richard Wagner, as the new Chief Justice of the Supreme Court.
This news raises some interesting questions: How are justices of the Supreme Court of Canada appointed? How is a Chief Justice selected?
The Creation of the Supreme Court – In Brief
The Supreme Court of Canada was created by the federal government pursuant to the federal power under section 101 of the Constitution Act, 1867 to "provide for the Constitution, Maintenance, and Organization of a General Court of Appeal for Canada and any Additional Courts for the better Administration of the Laws of Canada."
The Supreme Court was established in 1875 through an act of Parliament (An Act to establish a Supreme Court, and a Court of Exchequer, for the Dominion of Canada, SC 1875, ch. 11,). Since then, the act has been amended from time to time. Its current form is the Supreme Court Act, RSC, 1985, c S-26. The Supreme Court did not truly "get the last word" on the state of the law in Canada until many years after 1875, when its decisions no longer became reviewable by the Judicial Committee of the Privy Council in the U.K. (in 1933, for criminal appeals, and 1949, for all other appeals). In the 1998 Supreme Court decision in Reference re Secession of Quebec,  2 SCR 217, the Court called itself the "exclusive ultimately appellate court in the country."
Who can be Appointed to the Supreme Court
The Constitution Act, 1867 states that superior court judges "hold office during good behaviour" but "shall cease to hold office upon attaining the age of seventy-five years." These rules are also included in the Supreme Court Act and so clearly apply to Supreme Court judges.
The Constitution Act, 1982, (the Charter), prohibits amendments to the composition of the Supreme Court of Canada except through a constitutional amendment made by proclamation issued by the Governor General under the Great Seal of Canada where authorized by resolutions of the Senate and House of Commons and of the legislative assembly of each province.
The Supreme Court Act now requires that the Court have nine judges. Initially when the Court was formed, it was composed of six judges, and in 1927 it was raised to seven.
To be appointed by the Governor in Council as one of the nine, section 5 sets out that the groups of people who are eligible are: (1) current judges of a superior court of a province, including courts of appeal; (2) former judges of such a court; (3) current barristers or advocates of at least 10 years standing at the bar of a province; and (4) former barristers or advocates of at least 10 years standing. The Supreme Court Act also requires that at least three of the judges be appointed from the current judges of the Quebec Court of Appeal or Superior Court of Quebec or current members of the Barreau du Québec. The eligibility requirements are thus narrower for appointments from Quebec than for the other regions, but the province has a protected number of seats.
Outside of this limited residency requirement, there is a custom for regional representation on the highest court. Traditionally, the Governor in Council appoints three judges from Ontario, two from the West, and one from Atlantic Canada. In connection with the recent appointment of Justice Martin, the Government of Canada's announcement asked candidates to specifically make reference to any relationship they had with Western Canada or Northern Canada. Seeking to appoint a judge from western and northern Canada was consistent with maintaining the regional balance on the Court, as Chief Justice McLachlin is a western appointment (having previously been Chief Justice in British Columbia).
How Supreme Court Judges are Appointed Under the Trudeau Government
Under the Supreme Court Act, all the judges are appointed by the Governor in Council by letters patent. This appointment is done on the advice of the Prime Minister.
In summer, 2016, the Government of Canada introduced a new Supreme Court appointment process to ensure that it is "transparent, inclusive, and accountable to Canadians." The process requires that all Supreme Court appointees be "functionally bilingual," which was a campaign promise during the last election, and that appointees "reflect a diversity of backgrounds and experiences." The Independent Advisory Board for Supreme Court of Canada Judicial Appointments was created to accept and review applications for Supreme Court vacancies. Applications are submitted to that seven-member Advisory Board through the Office of the Commissioner for Federal Judicial Affairs. The Advisory Board submits a short list of three to five individuals nominated for the Prime Minister's consideration.
How the Chief Justice is Selected
The Prime Minister selects who will be the Chief Justice from among the nine judges of the Supreme Court. There is a tradition of rotating between a Chief Justice from Quebec and from the rest of Canada. The Prime Minister upheld this tradition when he chose the new Chief Justice on Dec. 12 from among the three judges appointed from Quebec (being the Hon. Richard Wagner who is the new Chief Justice, and the Hon. Clément Gascon, and the Hon. Suzanne Côté).
Unique Roles of the Chief Justice Outside of the Court
The Chief Justice has many roles inside and outside the Court. He or she must preside over all sittings of the Court when he or she is present, and is the person who designates the panels of judges who hear applications, appeals and motions before it. He or she must administer the Oath of Office to the eight other justices of the Court. Outside the court, there are some notable roles. The Chief Justice is a member of the Privy Council of Canada and chairs the committee which advises the Governor General on awards of membership into the Order of Canada. In the case of death, incapacity, removal or stay outside Canada for more than a month of the Governor General of Canada, the Chief Justice becomes the Administrator of Canada to exercise the powers and functions of the Governor General for that time. The Chief Justice also holds titles within the legal profession, such as being the Chair of the Canadian Judicial Council.