By Collin May, April 2, 2026
Canadians are told that judicial appointments are independent, transparent, and based on merit. That claim is repeated so frequently that it is rarely questioned. But it should be. Based on my experience, the reality is far less clear – and far less reassuring – than these assurances suggest.
Federal Justice Minister Sean Fraser, responding to recent demands by the premiers of Quebec, Ontario, Saskatchewan and Alberta for more input into federal judicial appointments, rebuffed the group of four provinces. Echoing statements from Supreme Court Chief Justice Richard Wagner, Fraser argues that the Canadian judicial selection process is independent, citing the role of Judicial Advisory Committees, and that it is transparent and includes provincial consultation.
As a lawyer who served two terms on the federal Judicial Advisory Committee (JAC) for Alberta under the Harper and Trudeau governments, I would respectfully disagree – particularly when it comes to the alleged independence of the JACs. I would also question whether the process is meaningfully transparent or involves any real provincial consultation.
Independence and Partisanship
We can start with the claim that the judicial selection process is independent, and with the role the JACs are said to play in it. Federal judicial appointments, including those to superior and appellate courts other than the Supreme Court, are open to lawyers who have been members of a provincial bar for at least ten years. Applicants submit materials through the Office of the Commissioner for Federal Judicial Affairs Canada (FJA).
Once received, applications are forwarded to the JAC for the relevant province. Each province has at least one committee (with Quebec and Ontario having more due to population), and each JAC consists of seven members.
Three of those members are appointed directly by the federal Justice Minister and are described as “public representatives.” The Chief Justice of the provincial Court of Appeal appoints one member. The remaining three are drawn from the province’s law society, the Canadian Bar Association (CBA), and the provincial Justice Minister.
In practice, however, even these appointments are not independent of the federal government. Each of the three bodies – including the provincial Justice Minister – submits a list of nominees, from which the federal Justice Minister ultimately selects one name. The Chief of the Court of Appeal generally has the right to directly name their representative. However, the end result is that the federal Justice Minister exercises significant influence over nearly the entire composition of the committee – directly naming three of his or her own representatives and picking the remaining members from lists of three, excluding the Chief Justice’s representative.
It is also important to note that JACs are not constitutionally required. Their structure – and even their existence – is determined by the federal government of the day. Over time, different governments have modified that structure to fit their own priorities.
Under Prime Minister Stephen Harper’s tenure, the representative of the Chief of the provincial Court of Appeal often served as Chair of the JACs but did not vote. Instead, the Conservatives added a voting representative of the law enforcement community. This change particularly concerned criminal defence lawyers, who feared that a representative of law enforcement would skew the JACs toward a more “law-and-order” mandate. Others argued that law enforcement should not be represented because criminal cases are only a portion (albeit a significant one) of the matters coming before the courts.
These objections may have merit. But the same points could be raised about representatives from the provincial law societies and branches of the CBA. Both organizations tend to reflect progressive views on legal and political matters. For example, consider the Law Society of Ontario’s failed efforts to compel lawyers in that province to subscribe to equity, diversity and inclusion statements, as well as the CBA’s recent stance against immigration reform. If law enforcement representation is seen by some as introducing a conservative bias, these organizations may be seen as introducing a bias in the opposite direction.
More fundamentally, there is no clear reason why provincial legal regulators or the CBA require representation at all. Law societies regulate lawyers and sometimes paralegals, but not the judiciary. Similarly, the CBA is the professional association for lawyers. All practising lawyers must be a member of a provincial law society, so it can be argued that the regulators “represent” all the lawyers in the province by giving them a collective voice through their representative on the JAC. That said, law societies are statutorily tasked with protecting the public, not representing lawyers. By contrast, the CBA, for its part, is a voluntary organization, and many lawyers, including myself, are not members.
All of this suggests that the law society and CBA representatives to the JAC could just as easily be replaced by lawyers who are less inclined to reflect the progressive leanings of those organizations. Alternatively, those positions could be filled by appointees of the provincial Justice Minister. This would give both the federal and provincial governments three representatives each, with the Chief Justice’s representative serving as the seventh voting member. In a province like Alberta, where only three of thirty-seven Members of Parliament belong to the governing federal Liberal Party, such a structure might better reflect the will of voters.
However, there is another issue with the JACs, one dating back to changes made by the Trudeau government in 2016, that calls their independence and non-partisanship into question. As we noted, the three representatives of the federal Justice Minister are referred to as “public representatives” rather than representatives of the federal minister. This is a change from previous governments of all stripes. Prior to 2016, the three individuals chosen directly by the federal minister were all lawyers. Granted, they tended to be partisans of the ruling party, but they were still lawyers.
Practically, having lawyers sit on the JAC tends to mean that the focus of their deliberations will be on metrics such as competence, reputation, and judicial aptitude. Given that lawyer members of the JAC are often litigators who will appear before these new justices in court, they tend to focus on skills and integrity when recommending candidates for the judiciary. Also, as lawyers, we know other lawyers who will have worked with the candidates or were opposite them on files, allowing us to contact individuals who can give an unvarnished assessment of each applicant.
This changed in 2016. That year the Trudeau government – consistent with much of its progressive ideology – replaced the three lawyers representing the federal minister with three members of the public. This may sound “representative,” but the devil is in the details. Ostensibly, lawyers were replaced with non-lawyer public members to improve representation from marginalized groups and to make the judiciary more diverse and inclusive. Not surprisingly, these new public members overwhelmingly come from social justice-oriented professions and organizations. In effect, the Trudeau government replaced lawyers focused on credentials with progressive public members focused on ideology – the Liberal government wrote its own political agenda into the JAC’s makeup. These judicial reforms mirror similar changes to the Canadian Senate, where the Trudeau government, claiming to increase senators’ independence, replaced partisanship in appointments with ideological purity, creating an increasingly woke and irrelevant Senate.
To further this ideological winnowing of candidates, the application form was modified to include a question requiring applicants to express their views on the role of justices in society. This stacked question inevitably favours candidates with progressive leanings, particularly within a JAC composed of ideologically selected members.
This does not mean that the candidates ultimately recommended to the federal Justice Minister are unqualified or that justices appointed under this process are compromised. It does mean, however, that there is a clear bias within the JAC – hardly independent or non-partisan – towards candidates who share the Trudeau Liberals’ leftist views. When combined with the progressive inclinations of provincial law societies and the CBA, the result is a JAC heavily tilted towards an ideological litmus test, making it more difficult for qualified candidates with more conservative perspectives to run the gauntlet.
Transparency and consultation
This brings us to transparency and consultation. In terms of transparency, very little about the process is open to public scrutiny – in fact, essentially none of it is. The JACs operate under strict confidentiality. Both their deliberations and their recommendations are known only to themselves, the FJA and the federal Justice Minister. This lack of visibility reinforces concerns about independence, since there is no way to determine whether JACs are favouring candidates with particular legal or political philosophies.
Many compare this to the more open – and overtly political – process in the United States, where candidates for federal judicial appointments must appear before the Senate Judiciary Committee and be approved by a majority vote in the full Senate. While some argue that this process is more politicized and nasty, it is undeniably more transparent.
As for consultation, once the federal Justice Minister receives the recommendations from the JACs, he and his staff often contact individuals within the province to obtain their views. However, these individuals are typically partisan actors. Occasionally, the Justice Minister’s staff will consult directly with the Chief Justice of the relevant court in the province, particularly where their legal philosophies align. Overall, consultation at this stage is neither particularly non-partisan nor transparent, and it does not meaningfully reflect input from the provincial governments.
Solutions
Ultimately, the provincial premiers have a point – a more balanced system is possible. One option would be to reconfigure the JACs so that the federal Justice Minister and his provincial counterparts each directly pick three representatives, either lawyers or non-lawyers as the ministers prefer. The Chief Justice in the province could select a seventh member, or the six other JAC members could make the selection themselves. Provincial law societies and the CBA would no longer have designated representation. This approach would better reflect a balance between federal and provincial priorities while addressing concerns about consultation.
In terms of transparency, while the final choice could remain with the federal Justice Minister, each nominee could be required to appear before the House of Commons Justice Committee to answer questions from all parties. This would provide some of the openness of the American system without fully politicizing the process, since it would avoid requiring a legislative vote on candidates.
Absent greater transparency and a more balanced approach – including one that purges the current ideological bias within the JACs – it may simply be best to eliminate them altogether and leave appointments to the discretion of the federal Justice Minister. Better outright partisanship in appointments than ideological conformity parading as independence behind closed doors.
In the end, the central difficulty with federal judicial appointments is the opacity of the process – not only for Canadians but also for most lawyers and justices. Unless one has served on a JAC or closely studied its evolution, there is little insight into how judges, who make fundamental decisions about our rights, are actually chosen. What is clear is that dismissive references to the purported independence, transparency, and consultative rigour of the process bear little resemblance to reality, leaving Canadians largely in the dark about their judiciary – perhaps exactly as this federal government prefers.
Collin May is a lawyer in Calgary, former chief of the Alberta Human Rights Commission. He was appointed an adjunct lecturer in community health sciences at the University of Calgary for his work on harm caused by unfair or inappropriate complaints processes related to professional regulators.
