Albertans will be asked Oct. 19 whether Alberta should work with other willing provinces to seek a constitutional amendment transferring the power to appoint judges to the Court of King’s Bench and Court of Appeal from the federal government to provincial governments. The proposal appears as Question 6 on the referendum ballot and would cover Alberta’s two superior courts. A yes vote would give the provincial government a mandate to pursue constitutional negotiations with other provinces and Ottawa, rather than transfer appointment authority immediately.

Question 6 asks: “Do you support the Government of Alberta working with the governments of other willing provinces to amend the Canadian Constitution to have provincial governments, and not the federal government, select the justices appointed to provincial King’s Bench and Appeal courts?” The Alberta government says the change would give the province a greater role in choosing judges and help it identify candidates familiar with Alberta’s legal and economic circumstances. Justice Minister Mickey Amery has placed the proposal within a wider effort to change the justice system, including bail, criminal sentencing and Criminal Code reforms.

“We’ve taken a stance. We’ve said it’s time that we have meaningful input into what is happening in our courts,” Amery said in an interview with CTV News Calgary. The government has not cited a specific decision by a federally appointed judge as the reason for the proposal. Amery said Alberta believes its own legal community can better recognize strong candidates than a selection process conducted primarily in Ottawa.

“We think we have a great ability to identify those candidates. We want the bench to reflect the makeup of Albertans,” he said. The proposal would change appointment authority for the superior courts, while judges on the Alberta Court of Justice are already appointed by the province. Alberta also appoints King’s Bench applications judges, a separate group of provincially appointed judicial officers working within the Court of King’s Bench.

Alberta already selects most of the province’s judicial decision-makers, according to the figures cited by CTV News Calgary. The Alberta Court of Justice handles most criminal matters, along with family and civil cases within its jurisdiction, and has 136 full-time-equivalent judicial positions listed by Alberta Courts. The Court of King’s Bench has 83 regular judicial positions, while the Court of Appeal has 15, for 98 regular positions combined. Those counts are full-time equivalents, not necessarily the number of individual judges sitting in the province. Some judges continue part-time after becoming supernumerary, and vacancies and other appointments can affect the headcount.

Taken together, the provincial and federal appointment figures mean Alberta appoints roughly 60 to 65 per cent of the province’s judicial decision-makers, said Doug King, a justice studies professor at Mount Royal University. He said the Alberta Court of Justice hears most cases from a criminal justice perspective. “From a criminal justice perspective, they hear 95 per cent of all the cases,” King said. “So, is this more of a political statement or is this an attempt to solve a problem that we have identified?”

King said changing the appointing government would not necessarily change how justice is delivered. “It’s the same pool of judges,” he said. “All swear allegiance to their profession. Not to the government.” He argued that the effect would depend in part on whether Alberta changed the independent system for nominating and selecting candidates. “What would matter is if a province from Alberta changed the nomination and selection process, if they decided to put a real heavy political agenda to change the dynamic of it,” King said.

Although Ottawa has final authority over appointments to the Court of King’s Bench and Court of Appeal, Alberta already takes part in the federal process. Lawyers and eligible provincial and territorial judges apply through the federal judicial appointments system. A judicial advisory committee reviews candidates and makes recommendations to the federal justice minister, though those recommendations are not binding. Its members represent the judiciary, provincial government, legal profession and public.

Retired Alberta judge Adèle Kent KC said the system was designed to balance provincial and federal involvement. “I think it’s important to have a balance in terms of how we govern. And then in my particular case, how we provide meaningful justice to Canadians and particularly Albertans,” she said. The committee includes a provincial government representative, members of the Law Society and Canadian Bar Association, a judge and federally appointed public members. “Right now, they’ve only appointed two. They’re both Albertans,” Kent said of the federal public members.

Candidates are assessed on factors such as legal knowledge, work ethic, ethics and involvement in their communities, Kent said. “Those aren’t quite the words, but that’s what they say,” she said of the government’s stated desire for judges who understand their communities. “And so in this application process, the committee is also looking about the community involvement of the judges.” Kathleen Ganley, an Alberta NDP MLA and former justice minister, also pointed to the existing provincial role. “The majority of voices are from Alberta on that committee,” she said. Opponents of Question 6 argue the debate is whether that role already provides sufficient provincial input without shifting final appointment authority.

Amery said Alberta officials and legal organizations have a closer view of lawyers and others working in the province’s justice system. “We know that a paper review being conducted in Ottawa is not as meaningful as being able to make decisions about remarkable candidates who are excelling in the legal profession for whom we have a line of sight on, here in Alberta,” he said. He also cited vacancies. When he became justice minister, he said, there were more than a dozen openings among roughly 80 Court of King’s Bench positions. “We think that we can be more effective in filling those vacancies. We think that we can be more responsive as well.”

Amery said the proposal was not intended to criticize judges currently serving. “The decision to have this meaningful role isn’t a criticism about the hard work of the men and women that are serving on our judiciary. It is a criticism of the process,” he said. Alberta’s judicial council and judicial nominating committee, he added, offer examples of the province’s capacity to assess candidates. “What we’re lacking is that same meaningful input and collaboration when it comes to the appointment of justices that serve on the Court of King’s Bench and the Court of Appeal,” Amery said.

The government has also argued that Alberta has “distinct legal traditions” that should be reflected in its judiciary. Amery pointed to the energy sector, an entrepreneurial culture and what he described as the drive and resilience of Albertans. “One of the easiest examples to talk about is our unique energy industry,” he said. “We know that the energy industry here in Alberta is one of the most important industries in the entire country.”

King questioned the claim of distinct traditions. “I’m not quite sure what those ‘distinctive legal traditions’ are,” he said. “I teach the damn course on introduction to Canadian law, and I’ve never come across that argument.” He said Alberta judges operate within the same Canadian constitutional and legal framework as judges elsewhere in the country, and that changing the appointing authority would not by itself determine whether judges remain independent.

The Alberta government says the proposed change would not threaten judicial independence. “We’re not asking to interfere with judicial independence whatsoever,” Amery said. “What we’re asking for is that collaboration and that meaningful input into the selection of judges. The judiciary is independent. It always has been, and it always will be.” He said the proposal would shift who makes the appointment, while leaving judges’ duties and the appointment process unchanged. “The process wouldn’t change. The only thing that we’re advocating for is the decision making to be moved from the federal government to the provincial governments.”

Ganley said judicial independence depends on keeping separation between the legislature and judiciary and avoiding the concentration of too much power in one government. “Essentially what they’re doing or what they’re wanting to do is to remove all those other Alberta voices and that isn’t about Alberta having more say,” she said. “It’s about the UCP having more say, and I would suggest that the reason they want more say is because they want to control the budget. They want to appoint people who will enforce the laws the way they want them.” King, however, said the argument that federally appointed judges would be biased because Ottawa selected them does not hold up.

Based on reporting by CTV News Calgary.