Canadian legal experts and francophone groups are criticizing Alberta Premier Danielle Smith’s calls for more input in federal judicial appointments and relaxing bilingualism requirements for Supreme Court judges as threats to judicial independence and language rights.  

In a letter addressed to the premier’s office Thursday, the Canadian Bar Association and its Alberta branch expressed its “grave concerns” over Smith’s proposal.

“We are particularly concerned by your stated intention to ‘withhold funding to support any new judicial positions in the province’ until your demands are met,” the bar association’s letter said.

“Threatening to withhold this funding is not only unconstitutional, but also undermines the administrative autonomy of the courts, which is a core institutional safeguard of judicial independence.”

The statement follows a letter made public this week from Smith to Prime Minister Mark Carney, calling on the federal government to reform the selection process for federally-appointed judges. 

Part of Smith’s letter suggested a new four-person selection committee be formed with equal provincial and federal representation to help ensure judicial appointments “appropriately reflect Alberta’s distinct legal traditions” and strengthen public confidence in the administration of justice.

The bar association, however, said such a committee would “fundamentally compromise” principles of non-partisanship, transparency and the preservation of judicial independence inherent in the appointment process.

Adèle Kent, a retired Court of King’s Bench of Alberta justice, said Judicial Advisory Committees in Alberta already do most of the heavy lifting in deciding who is qualified to become a judge, and they have a good balance of federal and provincial representation.

While the province is responsible for selecting judges to serve on the Alberta Court of Justice, the federal government makes selections for the Court of King’s Bench of Alberta, Alberta Court of Appeal and the Supreme Court of Canada.

The Office of the Commissioner for Federal Judicial Affairs in Ottawa is responsible for managing the process for appointing federally-selected judges, Kent said. The commissioner will send applications to the committee in Alberta, which reviews them and sends their recommendations back to the commissioner, she explained.

“That committee really does the hard work in deciding who is qualified to become a judge,” Kent told CBC Radio’s Calgary Eyeopener on Thursday. 

“They do a very thorough job in determining whether these candidates have the legal skills, the ethical standards, the work ethic to be judges,” she said.

Once the recommendations have been made, the commissioner passes them along to the federal minister of justice to decide who will be appointed. 

Kent said she is not sure what Smith’s letter means when it states Alberta has a “distinct legal tradition,” as the provinces and territories adhere to a similar legal framework.

“For the past century, we have had a process in Canada where the provinces and the federal government have tried to make uniform our legislation across the country so that we can have free movements of goods and peoples, just like when we talk about removing interprovincial barriers to trade,” she said.

Smith’s main demand for reform of the appointment process was rejected by Ottawa on Wednesday, with federal Justice Minister Sean Fraser saying he planned to maintain the current system.

In response to questions about the federal minister’s comments, Smith’s press secretary Sam Blackett said, “While the Premier awaits a reply from Prime Minister Mark Carney, we hope that Minister Sean Fraser reconsiders his position.”

Bilingualism requirements

Alongside calls to change the selection process, Smith also suggested Ottawa relax the bilingualism requirements for Supreme Court of Canada judges. Since 2016, the Supreme Court has required judges to have a functional understanding of both official languages. 

Smith’s letter says the rule “further entrenches systemic barriers and alienation for western Canadians and does not reflect Canada’s broader linguistic diversity, including the many Canadians who are bilingual in other languages.”

In order to be appointed to the top court, it is expected that a Supreme Court judge can read materials and understand oral arguments, and converse with counsel without the need for translation services. 

Such language eligibility requirements do not exist for superior justices to be appointed in Alberta’s courts. 

In a statement earlier this week, Alberta’s French lawyers association and the provincial chapter of the French Canadian Association said the requirement protects and ensures access to justice.

“This guarantee is enshrined in the Canadian constitutional, legislative and jurisprudential framework, which includes the right to a bilingual judge who understands the litigant’s official language,” the French-speaking Legal Professionals Association of Alberta said in the statement. 

“Questioning the language requirements in the judicial appointment process in Canada in accordance with the Official Languages Act directly undermines or deliberately ignores fundamental respect for language rights.”

By law, three of the nine seats on the Supreme Court are to be appointed from Quebec. The remaining seats, by tradition, are to be filled by three judges from Ontario, two from the western provinces or northern Canada, and one from the Atlantic provinces.

Kent said the necessity of the bilingual requirement is an ongoing debate in legal circles. The pool of bilingual judges in Western Canada is often smaller, she said, but judging cases through an interpreter isn’t ideal either. 

Still, Alberta has a strong pool of bilingual candidates, said Mark Power, a lawyer based in Ottawa with experience in language rights.

WATCH | Federal Justice Minister Sean Fraser defends judicial appointment process:

Fraser touts importance of independent judiciary as Alberta threatens to halt funding for judges

Alberta Premier Danielle Smith wrote to Prime Minister Mark Carney that her government will withhold funding for new judicial appointments if the federal government doesn’t give her province more input in the selection process. ‘It’s essential that we have a judiciary who is able to make decisions without fear or favour,’ Justice Minister Sean Fraser said.

“This idea, at least from my perspective … is a smokescreen, is a request based on facts that don’t exist,” Power said in an interview Wednesday.

He said there is a strong public policy argument for having bilingual judges, especially at the Supreme Court level.

“One’s capacity to be heard in one’s language, understood in one’s language without a third party … increases the ability of the other person to understand what it is you’re trying to convey, to understand the legal submission, to understand the evidence given,” he said.

Alberta’s Arts and Culture Minister Tanya Fir said in an email Thursday that the government’s commitment to supporting Alberta’s francophone community has not changed.

“The highest levels of Alberta’s justice system should reflect the wide spectrum of Albertans,” she said.

Fir added that Alberta getting a say in judicial appointments “would enhance trust in Canada’s legal system.” 

Concerns of political influence

Smith’s letter also said granting Alberta a greater role in the appointment process would “help ensure judicial decision-making reflects the values and expectations of Albertans.”

The Canadian Bar Association said this language “underscores the political nature” of the letter.

“This language implicitly impugns sitting judges — Albertans who have demonstrated professional excellence and possess the personal qualities required for judicial office,” it said.

The president of Alberta’s French lawyers association, Elsy Gagné, said Wednesday she understands Smith’s broader concerns about how judges are appointed, explaining she doesn’t think the system is perfect either, but added that politics should have no role in the appointment of judges.

“We want the system, the tribunal, to be as independent as possible and as impartial as possible,” she said. “We don’t want the politics of having a political agenda to influence the judicial power of the court.”

WATCH | Smith’s letter to PM on judicial reform ‘not surprising,’ says political analyst:

Premier Smith’s letter to PM on judicial reform ‘not surprising’: political analyst

In a letter to Prime Minister Mark Carney, Alberta Premier Danielle Smith says the province will withhold funding for new judicial appointments unless it gets a say in the selections. Political analyst Deirdre Mitchell-MacLean says the letter is part of Smith’s push for Alberta autonomy amid calls for separatism.

Jared Wesley, a University of Alberta political scientist, said Smith’s letter has more to do with “coded” political language than procedural change.

“The rhetoric that she used around it — talking about Alberta values, and in other public statements saying that federally appointed judges are not legitimate gatekeepers to democracy and so on — suggests that it’s a real concerted effort to delegitimize the role of the courts in policymaking in Alberta,” Wesley said.

He added that the threats to withdraw funding are concerning, as not fully funding and supplying judicial positions could result in significant backlogs for Albertans using the legal system.

“The politics seem to fit a pattern with this premier of attacking the judiciary as a means of trying to consolidate her own power over policymaking in the province,” he said.