Edmonton Journal has reported:

Premier Danielle Smith praised the federal appointments of Malcolm Lavoie and Thomas Rothwell to Alberta’s superior courts, saying they show Ottawa is “beginning to treat Alberta with more respect” on justice issues. A lawyers’ group campaigning against a referendum question on judicial appointments disputes the suggestion that the appointments reflect a change in the process and says Alberta’s existing role is already substantial.

On Friday, Smith and United Conservative Party Justice Minister Mickey Amery welcomed Lavoie’s appointment to the Court of King’s Bench and Rothwell’s appointment to the Court of Appeal. Federal Justice Minister Sean Fraser named both judges. Their appointments come as Albertans begin voting ahead of the Oct. 19 referendum, which includes a question about shifting responsibility for appointments to the province.

In a post on X, Amery welcomed what he called the federal government’s “willingness to meaningfully collaborate” on the appointments. “This constructive approach represents an important step forward for provincial involvement in future appointments to Alberta’s superior courts,” he wrote. “The highest levels of Alberta’s justice system should reflect Albertans and the province they serve.”

Amery added: “We maintain that greater provincial involvement would strengthen public confidence in the administration of justice.” In an email, he said the two appointments “marked a concrete change” in the selection process and involved “real input from Alberta.” He wrote: “We are grateful that the federal government listened to Alberta and acted on our advice”.

A spokesperson for Fraser gave a different account of how the appointments were made, saying the “established federal judicial appointments process” was followed in both cases. Press secretary Jeanne Joannie Fogue Mgamgne said in an email that Fraser has “a very positive and constructive working relationship with Minister Amery and values his input and perspective on matters affecting the administration of justice in Alberta.”

“As part of the federal judicial appointments process, the minister always seeks and considers the perspectives of his provincial and territorial counterparts before making appointments to courts in their respective jurisdictions,” Fogue Mgamgne wrote.

Lavoie was Alberta’s deputy minister of justice and deputy attorney general before his appointment. In that role, he was involved in the province’s use of the notwithstanding clause to shield four laws from court challenges. Earlier this year, at a Supreme Court hearing concerning Quebec’s secularism law, Lavoie personally argued Alberta’s position on the notwithstanding clause, an unusual step for a deputy minister.

Question 6 asks whether voters support Alberta joining with other provinces to seek a constitutional amendment transferring responsibility for appointments to superior courts and courts of appeal from the federal government to the provinces. The issue has received less attention than provincial separation, but the proposed change would affect who appoints judges to Alberta’s Court of King’s Bench and Court of Appeal.

Under the current arrangement, provinces appoint judges to provincial courts, while the federal justice minister makes appointments to Alberta’s Court of King’s Bench and Court of Appeal. Independent committees review candidates for appointments at both levels before the relevant minister makes a final decision.

Alberta Lawyers for Judicial Independence is a third-party advertiser urging voters to reject Question 6. The group says the UCP government’s drive for increased appointment powers undermines judicial independence without addressing concerns such as bail reform. It also points to government barbs about a “Trudeau-appointed judge” and threats to block funding as part of that campaign.

Will van Engen, an Edmonton defence lawyer and organizer with the group, said the appointments of Lavoie and Rothwell show the process operating as it has previously. “They are both eminently qualified and were recommended through the non-partisan Judicial Advisory Committee process,” he said in an email. “The comments of Premier Smith and Minister Amery suggest that these appointments are somehow unique and that there has been unprecedented collaboration between the federal and provincial governments.”

Van Engen said the claims of unusual collaboration are not supported by the process. “The Judicial Advisory Committee has always provided the provincial government with a seat at the table, along with representatives from the court, the Law Society, the Canadian Bar Association, and the federal government.”

He also challenged the suggestion that earlier appointments showed a lack of respect for Alberta. Rothwell, whom Smith and Amery praised as an excellent appointment to the Court of Appeal, worked for Alberta Justice and Solicitor General for many years, van Engen said. “Justice Rothwell, who both Premier Smith and Minister Amery quite properly praise as an excellent appointment to the Court of Appeal, and who worked for Alberta Justice and Solicitor General for many years, was appointed to the Court of King’s Bench in 2020 during Prime Minister Justin Trudeau’s tenure,” he said. “So, the system worked then and it works now.”

Van Engen said federally appointed judges hear about five per cent of court cases in Alberta. Most cases, including most bail hearings, are heard by provincially appointed judges, who, like federal appointees, decide cases according to the facts and the law.

He objected to the idea, expressed by Smith on her radio show, that Alberta should be able to “choose” judges it believes reflect Alberta values. Van Engen said that approach would undermine judicial independence while overlooking the existing role of provincially appointed judges.

“The process we have right now does a pretty good job,” he said. “No system is perfect, but it does a pretty good job of vetting candidates for (Court of King’s Bench) and the Court of Appeal, and the province gets to appoint the vast number of judges that hear the vast number of cases”

The referendum’s Question 6 would require Alberta to work with other provinces to pursue a constitutional amendment before appointment authority could be transferred. The current system leaves appointments to the two superior courts with the federal justice minister, following committee review and consideration of provincial and territorial perspectives.