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. Democracy Watch v. Canada (Attorney General)

In Democracy Watch v. Canada (Attorney General) (Fed CA, 2024) the Federal Court of Appeal dismissed an appeal (primarily on evidentiary grounds) by a public interest advocate's application that alleged that the "the process by which judges are appointed under section 96 and 101 of the Constitution Act, 1867" "is subject to political discretionary control, influence, and interference by the federal Minister of Justice and Cabinet":
[1] The appellants appeal from the judgment of the Federal Court in Democracy Watch v. Canada (Attorney General), 2023 FC 31 (per Southcott J.). In that judgment, the Federal Court dismissed the appellants’ application challenging the process by which judges are appointed under section 96 and 101 of the Constitution Act, 1867. The appellants alleged that the appointment process is subject to political discretionary control, influence, and interference by the federal Minister of Justice and Cabinet. The appellants argued before the Federal Court that such control, influence, and interference undermines the institutional independence of the judiciary in violation of sections 7, 11(d), and 24 of the Canadian Charter of Rights and Freedoms and section 96 of the Constitution Act, 1867.

....

[12] I accordingly see no error in the Federal Court’s conclusion to disallow the opinion pieces, the ICJC Report, or the statement from the President of the CBA.

[13] What the Federal Court was left with, and what is now before this Court, amounts to pure speculation about possible inappropriate considerations that might come into play in the judicial appointment process. Indeed, before us, the appellants cast their submissions in the form of what "“could happen”" in that process and the potential for a governing party to use candidates’ past political affiliations as an important criterion for appointment. However, there is no evidence this occurred. The mere fact that the Minister of Justice appoints some of the members of Judicial Advisory Committees or may consult with others, including with cabinet colleagues, about potential judicial appointments falls well short of establishing that the institutional independence of the judiciary is undermined in violation of sections 7, 11(d) and 24 of the Canadian Charter of Rights and Freedoms and section 96 of the Constitution Act, 1867.

[14] I therefore conclude that the Federal Court did not err in dismissing the appellants’ application. In the circumstances, I decline to make any comment on whether, in an appropriate case, a court might reach a different conclusion if there were different admissible evidence before it about the functioning or composition of Judicial Advisory Committees or consultations undertaken in the appointment process. That is best left for another day. I would therefore decline to draw a bright–line conclusion that the only essential conditions for institutional judicial independence are security of tenure, security of remuneration, and administrative independence. Indeed, in Valente v. The Queen, 1985 CanLII 25 (SCC), [1985] 2 S.C.R. 673, the Supreme Court did not firmly foreclose the possibility that judicial independence might one day be found to encompass additional elements.


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