Open Letter on Behalf of Alberta Lawyers and Retired Judges

Judicial Independence is a cornerstone of Canadian democracy and the rule of law. It is a fundamental principle at the heart of our judicial system. Now, more than ever, the rule of law must be protected in Canada.

In our democratic system of government, our elected representatives in the legislative branch of government create the laws which the executive branch of government puts into effect. The courts play a vital role as the third branch of government, the judicial branch, interpreting the law when disputes arise.  

The framers of Canada’s constitution wisely envisioned shared responsibility between the federal and provincial governments in virtually all areas of governance. The appointment of judges is no different. The provincial government appoints judges to the Court of Justice of Alberta, which sits in large and small communities, and hears the vast majority of legal cases in the province. The federal government appoints judges to the Court of King’s Bench of Alberta and the Court of Appeal of Alberta.

Although some judges in the province are appointed by the federal government, these judges are Albertans who serve the interests of their fellow Albertans and the rule of law. The process of recommending candidates for the federal judiciary is a rigorous one undertaken by an independent committee made up of Albertans who serve in the judiciary, the legal profession, and representatives from both provincial and federal governments. The recommendation and selection process is merit-based and non-partisan. At the heart of the process is the endeavour to protect judicial independence.

Independent and impartial judges are essential to preserve the rule of law. The judiciary must be independent from the government, including the government that appoints them. Without judicial independence, we risk the erosion of the foundations of our democratic society. It is a slippery slope towards tyranny and oppression. Therefore, the appointment of judges must be free from any political motivation or partisan influence.

Question # 6 of the October referendum seeks a constitutional amendment to remove the federal government’s historic and constitutional responsibility for appointing judges to Alberta’s Court of King’s Bench and Court of Appeal.

Question # 6 is framed to ask:

“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?”

Question # 6 cannot be understood without considering the recent and continuing government rhetoric, which questions the integrity of federally appointed Alberta judges, and promotes the false narrative that Alberta must appoint its own judges to reflect the values and expectations of Albertans.  Question # 6 is an extension of this calculated attempt to undermine the confidence of Albertans in our judicial system.

We are opposed to this dangerous rhetoric. It misleads the public by ignoring that federally appointed judges are recommended through a non-partisan committee process and are not simply selected from the legal community by the Prime Minister. This false narrative also suggests that federally appointed judges in Alberta do not reflect the values of the communities in which they sit. It undermines public confidence in the judiciary and the administration of justice.

The wording and inclusion of Question # 6 reinforces the baseless suggestion that the current process of appointing judges in Alberta is antiquated, partisan, and controlled by the federal government without checks and balances. It serves to fan the flames of the false idea that federally appointed judges only care about the interests of a far-off federal government. Worse, it instills the idea that federal judges do not serve the interests of Albertans. It dismisses the fact that federally appointed judges are members of our communities, just like provincially appointed judges.

Let us be clear – Question # 6 offers an illusion. One that serves of the government of the day, not the citizens of Alberta. It is one further step down the road that ultimately leads to tyranny, governmental oppression and a lack of transparency. It sows division and mistrust.

We are therefore united in responding to Question # 6 with “NO”.