Albertans will be asked Oct. 19 whether the province should pursue a constitutional amendment that would give provincial governments, rather than Ottawa, the power to appoint judges to the Court of King’s Bench and Court of Appeal. The proposal is contained in Question 6 on the referendum ballot. The Alberta government says the change would give the province a greater say over who serves on its superior courts and allow it to identify candidates who better understand Alberta and its legal and economic circumstances. Justice Minister Mickey Amery says the issue is part of a broader push for changes to 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 pointed to a specific ruling by a federally appointed judge as the reason for the proposed change. Instead, Amery said Alberta believes its own legal community is better positioned to identify strong candidates than a 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.” Question 6 specifically 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?” A “yes” vote would not immediately transfer appointment authority to Alberta. It would instead give the provincial government a mandate to pursue constitutional negotiations with other provinces and the federal government. The proposal would affect Alberta’s two superior courts, while judges on the Alberta Court of Justice are already appointed by the province. Who appoints Alberta’s judges now? The first thing to understand about the referendum is that Alberta already appoints a majority of the province’s judicial decision-makers. The province appoints judges to the Alberta Court of Justice, which handles most criminal matters as well as family and civil cases within its jurisdiction. Alberta Courts lists 136 full-time-equivalent judicial positions on that court. Alberta also appoints King’s Bench applications judges, a separate category of provincially appointed judicial officers who work within the Court of King’s Bench. The federal government, meanwhile, appoints judges to Alberta’s two superior courts — the Court of King’s Bench and Court of Appeal. There are 83 regular judicial positions on the Court of King’s Bench and 15 on the Court of Appeal, for 98 regular positions combined. Those figures are expressed as full-time equivalents and do not necessarily represent the number of individual judges sitting in Alberta. Some judges continue working part-time after becoming supernumerary, while vacancies and other appointments can affect the headcount. Taken together, the provincial and federal numbers mean Alberta appoints roughly 60 to 65 per cent of the province’s judicial decision-makers, according to Mount Royal University justice studies professor Doug King. King said that distinction is important when considering what Question 6 would actually change. “From a criminal justice perspective, they hear 95 per cent of all the cases,” King said of the Alberta Court of Justice. “So, is this more of a political statement or is this an attempt to solve a problem that we have identified?” King said changing who appoints those superior court judges 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 added that the more significant question would be whether Alberta changed the independent process used to select judicial 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. Alberta already has a voice in federal appointments While Ottawa has final authority over King’s Bench and Court of Appeal appointments, Alberta is already involved in the process. Lawyers and eligible provincial and territorial judges apply through the federal judicial appointments system. Candidates are reviewed by a judicial advisory committee with members representing the judiciary, provincial government, legal profession and public. The committee assesses candidates and provides recommendations to the federal justice minister, although those recommendations are not binding. Retired Alberta judge Adèle Kent KC said the process gives Alberta’s legal community a significant role. She said the current system was deliberately designed to balance provincial and federal involvement in the judiciary. “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,” Kent 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. She said candidates are also assessed on factors including legal knowledge, work ethic, ethics and involvement in their communities. “Those aren’t quite the words, but that’s what they say,” Kent said of the government’s 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 points to the existing provincial involvement. “The majority of voices are from Alberta on that committee,” she said. For opponents of Question 6, the issue is whether Alberta’s existing role in the process provides sufficient provincial input, without changing who has final appointment authority. What Alberta says is wrong with the current system Amery argues Alberta can identify candidates more effectively because provincial officials and legal organizations have a closer view of the people 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. Amery also points to vacancies. When he became justice minister, he said there were more than a dozen vacancies 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.” He emphasized that the proposal is not intended as a criticism of judges already serving on Alberta courts. “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,” Amery said. He adds that Alberta’s own judicial council and judicial nominating committee provide examples of how the province can vet 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. What does Alberta mean by ‘distinct legal traditions’? Another central argument in the referendum debate is the government’s claim that Alberta has “distinct legal traditions” that should be reflected in its judiciary. Amery points to the province’s energy sector, entrepreneurial culture and what he calls 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.” Amery said Alberta’s institutions should reflect those qualities. King, however, questions the premise. “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.” King said Alberta’s judges already work within the same Canadian constitutional and legal framework as judges elsewhere in the country. He also argues that changing who appoints judges would not, by itself, determine whether they are independent. Would provincial appointments threaten judicial independence? The Alberta government says “no.” “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 change who makes the appointment, not how judges perform their duties. “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 with the opposition NDP said judicial independence is the more important consideration. She said the current system creates separation between the legislature and judiciary and prevents too much power from being concentrated 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,” said Ganley. “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 they were chosen by Ottawa does not hold up. “The counter to that is, the provincially appointed judges are biased because they’re appointed by the provincial government,” he said. “Both are factually untrue,” he added, pointing to the independent selection process. Howard Kislowicz, a University of Calgary constitutional law professor, said Canada has generally avoided the level of political judicial appointments seen in some other countries. “One thing we’re mostly lucky about in Canada is that our political appointment of judges has not become politicized to the same degree as we see in some other countries,” he said. Kent raised a different concern: provincial governments can change. “If there is that thinking then be careful for what you ask for because every four or five years there’s an election,” she said. Changing the Constitution would be a major undertaking Any transfer of appointment authority would require a constitutional amendment. Section 96 of the Constitution Act, 1867 currently provides the framework for the appointment of superior court judges. Amery acknowledged that constitutional change would be required to move the decision-making authority from the federal government to provincial governments. Kislowicz said Alberta cannot make that change on its own. Depending on how the amendment is structured, it could require the general constitutional amending formula, involving Parliament and at least seven provinces representing at least 50 per cent of Canada’s population. That would make the support of Ontario or Quebec particularly important. Kislowicz said there could also be arguments over whether a different constitutional formula applies. “This would be really difficult,” he said. King suggested Alberta could instead negotiate changes to the existing judicial advisory process with Ottawa. “Why don’t you step around the wall and start negotiating to the federal government?” he said. Amery said Alberta has already seen some movement from Ottawa. He said the federal government has become more willing to communicate with provincial justice ministers and share information about appointments since Alberta and other provinces began pushing for greater involvement. “A Constitution change is the best case scenario, but a policy shift as well is something that would serve all Canadians positively and really quick,” Amery said. Alberta says other provinces want a greater role The Alberta government says it is not alone in seeking a greater provincial role. Amery said Saskatchewan, Ontario, Quebec and Alberta have advocated for more provincial involvement, and premiers from those provinces have written to the federal government. CTV News Calgary reached out to all Canadian provinces and received responses from British Columbia, Newfoundland and Labrador, Nova Scotia and Saskatchewan. British Columbia said appointments to superior courts remain a federal responsibility, while acknowledging that other jurisdictions are advocating for greater provincial participation. It said a national standard remains important while recognizing provincial priorities. Newfoundland and Labrador said the issue has been raised among premiers and territorial leaders and emphasized the importance of provincial and territorial perspectives, while stressing that judicial independence is fundamental. Nova Scotia said appointments must remain independent and merit-based, while expressing interest in ensuring provincial perspectives are considered. Saskatchewan Justice Minister Tim McLeod said provinces are responsible for upholding the rule of law. “Providing provincial governments with a formal and meaningful role in the appointment process will strengthen public confidence in the administration of justice, promote an open and cooperative federalism, and help ensure the judiciary reflects the communities it serves,” he said. Saskatchewan has also said greater sharing of candidate information could make the process more transparent and less partisan. What voters are actually deciding Ultimately, Amery said Question 6 is about whether Alberta should pursue a greater role in choosing the judges who serve on its superior courts. A “yes” vote would not immediately change the appointment system. Instead, it would give the province a stronger mandate to work with other governments toward constitutional change. Amery said the referendum could also build momentum for discussions already underway with Ottawa. “Maybe this question will bring them to the table so that they have true and meaningful conversations with us about what we’re hoping to see,” he said. The referendum will be held Oct. 19.
