The Office of the Commissioner for Federal Judicial Affairs states, on its website, that one of its responsibilities is related to the appointment of federal judges:

I would like to know what statutory provisions empower the Commissioner office to create and manage this network of committees.

This is a follow-up to the answered question "What Act of Parliament established the Office of the Commissioner for Federal Judicial Affairs in Canada?" where I wrongly believed that the Office of the Commissioner is not lawful. I am drilling down to learn the legal basis for the Government appointing federal judges.

The answer to that question leads to the Judges Act, where the duties and functions of the Commissioner are provisioned. My understanding is that the Commissioner is responsible for administrative arrangements related to the Canadian Judicial Council, but does not have any responsibilities relating to appointment of judges.

Hence, my question here, is specifically about how anything related to appointment to judges is legislated to fall under the Commissioner's duties.

The members of the network of "judicial advisory committees" are volunteers selected by government from the legal profession. I'm not interested here into why such an important task is left to unpaid volunteers, but this fact leads me to believe that the Commissioner has no responsibility relating to the appointment of judges. If anyone was legitimately responsible with some part of the process would be paid, and such positions would appear in the legislation.

EDIT: I do understand that the government is of the opinion that Cabinet and Privy Council are interchangeable because frequently some or even all Cabinet members happen to have been included in the Privy Council, and therefore Cabinet is entitled to advise the Governor General.

I also understand that the Supreme Court of Canada accepted this fallacy in 2002 SCC 54 at para 63.

However reputable these authorities may be, they are not legislators. I'm interested in the legislation that allows ministers to appoint the judges that review their decisions, not for the ministers or even the judges opinions. In other words, I would like to make my own determination of merit, rather than rely on someone else's. I just can't find the legislative sources that lead to the conclusion that a Commissioner was given the power to create and manage judicial advisory committees.

2 Answers 2


There is no statutory authority for the Minister of Justice to appoint a judge to a superior court

You edited to clarify that you are "interested in the legislation that allows ministers to appoint the judges." You will not find any. As this answer has always said at its outset, the appointment of judges is made by the Governor General. Neither the Minister nor Cabinet appoints judges.

The rest of the answer addresses what the question originally asked, including the legislation that grants the authority to the Minister and the Office of the Commissioner for Federal Judicial Affairs to organize committees to inform the advice that Cabinet ultimately provides to the Governor General.

Judicial appointments are made by the Governor General

Section 96 of the Constitution Act, 1867 says:

The Governor General shall appoint the Judges of the Superior, District, and County Courts in each Province, except those of the Courts of Probate in Nova Scotia and New Brunswick.

There are similar clauses in the statutes that establish statutory appellate and federal courts. E.g. from the Federal Courts Act, s. 5.2:

The judges of the Federal Court of Appeal and the Federal Court are to be appointed by the Governor in Council by letters patent under the Great Seal.

The Governor General takes advice from Cabinet, a practice that reflects constitutional convention

The Governor General makes these appointments on the advice of Cabinet which in turn is based heavily on recommendations from the Minister of Justice. This practice is justified by constitutional convention1 of responsible government, explained by Andrew Heard:

The legal authority of the Governor General is exercised in practice on the binding advice of a cabinet who can command a majority of seats in the House of Commons. This is the essence of responsible government.

See also, Democracy Watch v. Canada (Attorney General), 2023 FC 31 at para. 9 (a judgment in which the Federal Court rejected a constitutional challenge to the "validity of the Government of Canada’s federal judicial appointments system and judicial elevations system"):

By constitutional convention, when appointing judges to provincial superior courts, the Governor General acts on the advice of the Committee of the Privy Council of Canada. Similarly, the GIC, which appoints judges to the Federal Court, the Federal Court of Appeal, and the Tax Court of Canada, is defined in the Interpretation Act, RSC 1985, c I-21, as the Governor General acting on the advice or consent of the Privy Council for Canada. The Privy Council is composed of all the ministers of the Crown, who meet in the body known as Cabinet (see League for Human Rights of B’Nai Brith Canada v Attorney General (Canada), 2010 FCA 307 [B’Nai Brith] at para 77).2 As such, all federal judicial appointments are made by the Governor General on the advice of Cabinet. In turn, Cabinet acts on the advice of the Minister of Justice [Minister]. (In the case of appointment of Chief Justices and Associate Chief Justices, it is the Prime Minister who provides the advice to Cabinet. For simplicity, these Reasons will refer to the advice to Cabinet being provided by the Minister.)

And see League for Human Rights of B’Nai Brith Canada v Attorney General (Canada), 2010 FCA 307 at para. 78:

In practical terms, then, a statute that vests decision making in the Governor in Council implicates the decision making of Cabinet, a body of diverse policy perspectives representing all constituencies within government.

The Minister of Justice relies on the work of the Judicial Advisory Committees

The powers, duties, and functions of the Minister of Justice are found at s. 4 of the Department of Justice Act and these include having the "the superintendence of all matters connected with the administration of justice in Canada, not within the jurisdiction of the governments of the provinces."

It is through this power that the Minister of Justice is properly involved in the recommendation of people to provincial superior courts, statutory courts of appeal, and statutory federal courts. The Minister relies on the work of the Commissioner of Federal Judicial Affairs and its Judicial Advisory Networks. The Judges Act, s. 74(d) gives the Commissioner the power to "do such other things as the Minister may require in connection with any matter or matters falling, by law, within the Minister’s responsibilities for the proper functioning of the judicial system in Canada."

The history is discussed in A. Anne McLellan, "Foreword" (2000) 38:3 Alberta L. Rev. 603.

Since Confederation until about 1970, the Minister of Justice "generally relied on his personal knowledge or that of parliamentary colleagues of the local Bench and Bar" (McLellan, p. 604).

In the mid-70s, "the Minister of Justice created the position of Judicial Affairs Advisor to provide additional assistance in candidate recruitment" (ibid.).

And in 1988, "a new judicial appointments process was established," whereby candidates would make themselves known to the Minister through the Commission for Federal Judicial Affairs and the Judicial Advisory Committee (ibid.).

1. The critique that a constitutional convention could be contrary to "the letter, spirit or intent of the constitution" is paradoxical, given that constitutional conventions are part of the constitution. As the Supreme Court of Canada said, in Reference re Secession of Quebec, [1998] 2 S.C.R. 217: "the Constitution of Canada includes... the global system of rules and principles which govern the exercise of constitutional authority in the whole and in every part of the Canadian state." And that these supporting principles and rules "include constitutional conventions and the workings of Parliament." And in Reference re: Resolution to amend the Constitution, [1981] 1 S.C.R. 753, p. 883: "conventions... form an integral part of the constitution and of the constitutional system. They come within the meaning of the word 'Constitution' in the preamble of the British North America Act, 1867... constitutional conventions plus constitutional law equal the total constitution of the country."

2. While in some contexts, the distinction between the Privy Council and Cabinet might be meaningful, in many, including in this context controlled by constitutional convention, it is Cabinet that in fact is left to express the judgment of the Privy Council. The Supreme Court of Canada has written: "In the usual course of things, the Governor General exercises these powers for the Queen in right of Canada, acting on the advice of a Committee of the Privy Council (which consists of the Prime Minister and Cabinet of the government of the day)" (Ross River Dena Council Band v. Canada, 2002 SCC 54).


I have to give the answer I had reached myself prior to asking this question, as it was validated by @Jen's answer:

You have edited to clarify that you are "interested in the legislation that allows ministers to appoint the judges." You will not find any.

The Commissioner for Federal Judicial Affairs is not empowered by any legislation to operate a network of "judicial advisory committees".

Further, the Government has no powers related to the appointment of judges, given by legislation.

The Government's initiative to require applications and select judges relies on "constitutional convention", whereby the Government believes it has a role to play in the appointment of judges.

Jen's answer goes into some detail to explain how the appointment of judges happens in practice, which I cannot accept it because

  • the question is about the empowering legislation,
  • the question is not about how the process works in practice, and
  • the relevant part of the answer is obscured by irrelevant explanation.

Edit: I had made several comments on Jen's answer, to which Jen responded in her answer, but they have disappeared without trace. Just noting an irregularity.

  • You will quickly find without recognizing constitutional conventions nothing in Canada has a "legal" basis, which, of course, is still a position you may hold. But no law is law without you recognizing the sovereign (what law is there to give the British Parliament the power to modify and patriate Canada's constitution?); and for many people, not recognizing the doctrine of responsible government is zero steps (or for majority of people, a couple more steps) away from not recognizing the Queen.
    – xngtng
    Commented Sep 28, 2023 at 9:12
  • So you are right, but you should recognize how it practically works is part of the foundation of the Canadian state, and not observing how it practically works (or even disagreeing what the conventions mean) may have important consequences. Past that stage, the courts or the "law" alone cannot resolve the crisis.
    – xngtng
    Commented Sep 28, 2023 at 9:21
  • @xngtng, you make an excellent point, and I agree, the courts cannot be relied upon to remedy this issue, because they are not functioning correctly. I suppose this is for legislators (clarify the legislation) or the citizenry (pitchforks) to remedy. What do you envision as the important consequences of disagreeing with the meaning of conventions? The state functions as the state functions. That can't be argued. That it doesn't function as provided by the constitution is, however, subject to argument. Commented Sep 28, 2023 at 15:57
  • I questioned which are genuine constitutional conventions, as opposed to goal-seeking constitutional conventions. Eg, the argument that "judges are appointed by GG on the advice of Cabinet" is goal seeking. A genuine convention is unnecessary, because the constitution explicitly provides that "judges are appointed by GIC" where GIC means GG on the advice of the Privy Council. Substituting Cabinet for the Privy Council is a convenient fabricated "convention" as the Govt seeks to override constitution with the goal of controling judicial appointments. Commented Sep 28, 2023 at 16:13
  • 1
    When different actors of the state interprets the conventions differently, constitutional crisis may result with various degrees of repercussions or improvements.
    – xngtng
    Commented Sep 28, 2023 at 16:57

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