Alberta Referendum Analysis: Question #6
Who Should Appoint Alberta’s Judges?
Our Alberta Referendum Analysis Series continues with an examination of the first of four constitutional questions. My hope throughout this series has been to approach each question from an educational perspective, encouraging thoughtful discussion rather than advocacy. Ultimately, nothing in this analysis should replace each voter’s responsibility to read the question carefully, consider the facts, and reach their own informed conclusion.
Question number six on the ballot 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?
At first glance, this proposal appears to be another question about provincial autonomy. Many Albertans believe that Ottawa exercises too much control over provincial affairs, and the idea that Alberta should appoint its own judges may seem like a natural extension of provincial rights.
However, constitutional questions should not be answered simply by asking whether they transfer more power to Alberta. They should instead be evaluated by asking whether they strengthen or weaken the institutions that protect our democracy.
This proposal deserves careful consideration because it concerns one of the cornerstones of Canada’s constitutional system: an independent judiciary.
How Things Work Today
Under Canada’s Constitution, provincial governments establish and administer the superior courts within their province, including Alberta’s Court of King’s Bench and Court of Appeal. The judges who serve on those courts, however, are formally appointed by the federal government.
That does not mean Alberta has no role in the appointment process. In practice, judicial appointments are more collaborative than many people realize. Lawyers seeking appointment apply through a federal process and are evaluated by independent Judicial Advisory Committees. These committees include representatives from the provincial government, the judiciary, the legal profession, and the public. Alberta’s Attorney General is consulted as part of the appointment process and may provide input on prospective candidates before the federal government makes the final appointment.
In other words, Alberta already has a meaningful voice in identifying and evaluating candidates. The constitutional question is therefore not whether Alberta should participate in the process, it already does. Rather, the question is whether the final constitutional authority to appoint judges should be transferred from the federal government to the provinces.
The current arrangement was not created accidentally. At Confederation, the framers of Canada’s Constitution deliberately separated the authority to appoint superior court judges from the provincial governments whose laws those judges might one day be asked to review. The objective was to reinforce judicial independence by creating institutional distance between the provincial governments and the judges responsible for interpreting and applying the law.
Although judges hear criminal, civil, and family law matters every day, they are also called upon to decide constitutional challenges involving provincial legislation. The appointment system is therefore intended not only to protect judges from political influence, but also to ensure that the public has confidence that judicial decisions are based on the law rather than political considerations.
Why Some Support This Change
Supporters of this proposal argue that the issue is not whether Alberta should have input into judicial appointments, it already does. Instead, they believe Alberta should have the final constitutional authority to appoint the judges who serve on its superior courts.
Supporters contend that because provincial governments establish, fund, and administer these courts, they should also be responsible for making the final appointments. In their view, this would create greater democratic accountability by ensuring that elected provincial governments, rather than the federal government, are ultimately responsible for selecting the judges who will interpret provincial laws and serve Albertans.
Some also argue that the current system reflects a constitutional arrangement established more than 150 years ago, when the relationship between the federal and provincial governments was very different. They believe Canada’s federation has evolved and that provinces should now exercise greater authority over institutions that primarily serve their own residents.
Others see this proposal as part of a broader effort to strengthen provincial autonomy within Canada’s federation. From this perspective, transferring the appointment power is less about the qualifications of individual judges and more about recognizing the constitutional role of provinces and reducing federal involvement in matters they consider to be primarily provincial responsibilities.
Whether these arguments ultimately justify amending the Constitution depends on whether voters believe the benefits of transferring the appointment power outweigh the reasons the current system was established in the first place.
The Other Side of the Question
Opponents agree that Alberta already plays an important role in identifying and evaluating judicial candidates. Their concern is not that Alberta would appoint unqualified judges. Rather, it is whether transferring the final appointment power to provincial governments could weaken public confidence in the independence of the judiciary.
Justice must not only be independent, it must also be seen to be independent.
Superior court judges are regularly asked to determine whether provincial laws comply with the Constitution and whether governments have acted within their legal authority. Opponents argue that maintaining some institutional separation between provincial governments and the judges reviewing their legislation helps preserve both judicial independence and public confidence in the courts.
Would This Actually Change Much?
It is also worth asking whether this proposal would significantly improve Alberta’s justice system.
What is seen? The issues most Albertans experience are court delays, access to legal services, judicial vacancies, and the cost of litigation. Changing which level of government makes the final appointment may have little direct impact on these day-to-day challenges. So, if the practical benefits are uncertain, voters should carefully consider whether altering a long-standing constitutional arrangement is proportionate to the problem the proposal seeks to address.
Constitutional Reality
Unlike ordinary legislation, this proposal cannot be implemented by Alberta acting alone. Changing who appoints superior court judges would require an amendment to the Canadian Constitution. That would involve negotiations with the federal government and other provinces under Canada’s constitutional amending formula. A “Yes” vote would therefore not change the Constitution on its own; it would simply authorize Alberta to pursue those negotiations. Whether such an amendment could ultimately be achieved remains uncertain.
Questions Voters Should Consider
Rather than asking simply whether Alberta should have more authority, voters may wish to consider:
Does this proposal strengthen judicial independence or make it more vulnerable to political influence?
Would transferring the final appointment power improve the administration of justice?
Is there evidence that the current appointment system is failing Albertans?
Would this change increase or decrease public confidence in the impartiality of the courts?
Is this constitutional amendment proportionate to the problem it is intended to solve?
Final Thoughts
An independent judiciary is one of the foundations of Canada’s constitutional democracy. Courts must be able to review government actions without fear or favour, and Canadians must have confidence that judges decide cases according to the law rather than political considerations.
This referendum question is not about whether Alberta should have a voice in judicial appointments. It already does. The question is whether the constitutional balance should change so that the provinces, rather than the federal government, have the final authority to appoint judges to the superior courts.
Whether one ultimately supports or opposes that proposal should depend not on whether it transfers more authority to Alberta, but on whether it strengthens the long-term integrity, impartiality, and credibility of Canada’s justice system. Constitutional reforms should ultimately be judged not by how much power they transfer, but by whether they leave our democratic institutions stronger than they found them.