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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.

The Governor General makes these appointments on the advice of Cabinet which in turn is based heavily on recommendations from the Minister of Justice.

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 superior court judges and judges of statutory federal courts. The Minister delegates much work to the Commissioner of Federal Judicial Affairs (see the Judges Act, s. 74(d): which 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.).

Jen
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