By Troy Riddell, March 3, 2026
Alberta Premier Danielle Smith has called for greater provincial input into judicial appointments to provincial superior trial and appellate courts. The National Post supports the idea, arguing it would improve the quality of judges and curb what it sees as overly liberal decisions.
The Premier’s plan rests partly on a misunderstanding of how other jurisdictions, such as the United States, structure their court systems. That said, ideological considerations are not illegitimate in judicial selection – but they must be handled with caution. A more transparent and effective strategy for conservatives may be to focus on changing the law itself rather than reshaping the appointments process.
The Premier proposes panels of four non-partisan experts – two from the province and two from the federal government – to vet candidates. The provincial and federal Ministers of Justice would then work “collaboratively” to make appointments. To justify greater provincial input, Smith argued that US states (and Australia) select their own judges. The National Post applauded the proposal, contending that the federal Liberals have placed too much emphasis on diversity and that decisions in areas such as criminal justice, immigration, and Charter interpretations have been too liberal. The editorial also noted concerns about judicial “quality” and system delays, problems that extend beyond Alberta.
Before addressing those arguments, it is helpful to clarify how Canada’s judicial system actually works.
The Canadian Judicial Process
In addition to the Supreme Court of Canada, the federal government administers and appoints judges to federal courts that deal with federal administrative law (such as transportation, communications, and immigration) and other federal matters.
Meanwhile, provincial governments appoint judges to provincial trial courts. These courts handle the vast majority of criminal cases (under the federal Criminal Code), certain family law matters, and numerous civil disputes.
Each province also has superior trial courts and courts of appeal. These courts are administered by the provinces – overseeing staffing, facilities, technology – but their judges are appointed by the federal government. These courts hear serious criminal cases, significant civil disputes, and cases involving both federal and provincial law, including constitutional challenges.
This differs from the United States, where there is a stark division between federal and state courts. In the US, federal courts (administered by the federal government with federally appointed judges) handle federal law, and state courts (administered by the states with state-appointed judges) make decisions about state law. Canada’s system is more integrated.
In Canada, the federal government appoints judges to provincial superior trial courts and appeal courts via the following process: Screening committees – made up from lawyers from provincial legal organizations, federally appointed lay people, a judge from the province, and a provincial nominee – rate candidates as “highly recommended,” “recommended,” or “not recommended.” The federal Minister of Justice then appoints judges from this list.
Although provincial superior court judges are federally appointed, provinces administer these courts. As a result, provinces have some leverage – for example, Smith can threaten to decline to fill vacancies unless the system is reformed to give provinces more input into the process. (This occurred in the 1980s when Saskatchewan’s Conservative government under Premier Grant Devine closed positions on the Saskatchewan Court of Appeal out of frustration with patronage-linked superior court appointments by Prime Minister Pierre Trudeau’s Liberal government. The issue resolved itself after the Progressive Conservatives under Brian Mulroney were elected in 1984).
Formalizing Smith’s plan would require a constitutional amendment – a highly unlikely scenario. The more realistic question is whether the federal government might informally adjust the process to incorporate greater provincial input while retaining ultimate constitutional authority to appoint judges to the superior courts.
Provincial autonomy versus unifying effect of superior courts
Since superior courts do make some decisions involving provincial law and tribunals, including decisions about the constitutionality of provincial laws, one could argue that the provinces should have greater involvement in appointments.
On the other hand, the current structure – provincial administration combined with federal appointments – has a somewhat unifying effect in an otherwise highly decentralized federation. Critics fear that giving provinces more power in the process would undermine this “unifying” influence.
Either way, comparisons to the US can be misleading. The American model rests on a clearer separation between federal and state court systems. There is one area of overlap in the US system, but it points in the opposite direction of Premier Smith’s argument. Federal courts make decisions about whether state laws conform to the national constitution; yet state governments have no input into the selection of federal court judges. Canada’s hybrid approach reflects a different constitutional choice. (Australia’s system, also referenced by Premier Smith, is closer to the American approach.)
To the extent that Smith’s frustration is animated by bail decisions, it is worth remembering that provincially appointed Justices of the Peace and judges make most bail decisions – not the superior courts.
Would provincial input improve quality or reduce delays?
Even for those sympathetic to greater provincial involvement, it is not clear that the proposal would solve the concerns raised by the National Post. Delays are certainly a concern – but can you imagine how much longer it might take to appoint judges as the provincial and federal Ministers of Justice work “collaboratively” to decide on appointees? Moreover, Premier Smith’s threat to hold up appointments would only exacerbate delays.
On the “quality” question, it is certainly understandable that many people were frustrated by the former Trudeau government’s fixation on identity politics. However, the judicial appointments guidelines state that diversity considerations be considered “jointly” with professional competence and overall merit. Of bigger concern is the influence of patronage and its impact on professional competence. Smith’s proposed changes do not address this challenge.
Ideology, Judicial Selection and Judging
Governments do consider political affiliations when making appointments: roughly one-third of judicial appointees have connections to the government in power and very few have affiliations with opposition parties. Historically, “who you know” was a more prominent consideration than a candidate’s ideology per se. Indeed, social science studies suggest that the party of appointment does not produce meaningful statistical differences in judicial decision-making. Other research finds mixed results when examining party affiliation rather than party of appointment.
The limited influence of party of appointment and party affiliation likely has several explanations. Most appointees have no previous party affiliation. Even where affiliation exists, it might be a weak proxy for “ideology,” since both the Liberal and Conservative parties (and the former Progressive Conservatives) have a wide range of supporters. In addition, lower court judges are more constrained by law and precedent than apex court judges, which tends to limit ideological effects.
Some argue that the pool of potential candidates is itself skewed towards a progressive worldview, shaped by law school training, liberal-leaning legal professional associations, and numerous legal interest groups that favour a more activist judiciary to achieve social justice outcomes. Even if many candidates are more centrist than progressive, there may simply be relatively few “conservative” candidates from whom to choose.
Conservatives might therefore consider developing a more robust legal ecosystem to train and encourage potential candidates. At the same time, too heavy an emphasis on ideology in appointments carries risks. The pool of candidates is not deep, and the legitimacy of the courts depends on their fairness – and the perception of fairness.
As we have seen in the US, a politicized system of judicial appointments can erode trust in the judiciary. Examination of a candidate’s worldview should be used judiciously and be only one of several factors to be considered.
A more transparent strategy
Conservatives should use the appointment system prudently as a complement to legislative reform. The goal should be to guide all judges – regardless of their ideological orientation (or their demographics) – towards less “progressive” outcomes. In criminal law, for example, this would include reforms like sentencing guidelines (rather than blunt and ineffective solutions like mandatory minimums) that place more emphasis on victims and less weight on trying to fix social problems through sentencing. In Charter of Rights and Freedoms cases, it would mean continued use of the s.33 notwithstanding clause. These initiatives would be transparent and democratically legitimate, and perhaps be more effective in changing judicial outcomes than Premier Smith’s proposal.
From a provincial viewpoint, a drawback of this strategy is that provinces cannot change federal laws such as the Criminal Code. However, provincially-appointed judges on provincial courts handle the vast majority of criminal cases, and provinces can lobby for federal reforms, as they have done with bail legislation.
Finally, while I do not support Smith’s proposal, there may be room for modest, incremental change – for example, by adding another provincial member to screening committees.
Whether one agrees with Smith’s suggestions or the National Post’s editorial position, claims that discussing judicial appointments somehow undermines the judiciary should be rejected. In a liberal democracy, examining how judicial appointments shape the relationship between courts and the broader system of governance is critically important.
Troy Riddell is associate professor and chair of the Department of Political Science at the University of Guelph. He has interests in judicial politics and criminal justice policy and is a co-author of Canadian Courts: Law, Politics, and Process.
