As Smith applauds judicial appointments, lawyers speak out against referendum's judges question

Premier Danielle Smith is hailing a pair of judicial appointments as a sign the federal government is “beginning to treat Alberta with more respect” on justice system issues, ahead of a referendum question she hopes will lay the groundwork for an overhaul of how judges are named to the bench.

A lawyers’ group campaigning against the question, however, is skeptical of Smith’s claims, as well as her government’s attempt to secure more judicial appointment powers for the province.

On Friday, Smith and UCP Justice Minister Mickey Amery applauded the appointments of Malcolm Lavoie and Thomas Rothwell, who federal Justice Minister Sean Fraser named to Alberta’s Court of King’s Bench and Court of Appeal, respectively.

Before his appointment, Lavoie was Alberta’s deputy minister of justice and deputy attorney general, where he was involved in the province’s use of the notwithstanding clause to protect four different laws from court challenges. At a hearing on Quebec’s secularism law earlier this year, Lavoie personally argued Alberta’s position on the notwithstanding clause before the Supreme Court — an unusual move for a deputy minister.

In a post on X, Amery welcomed the federal government’s “willingness to meaningfully collaborate” on the appointments.

“This constructive approach represents an important step forward for provincial involvement in future appointments to Alberta’s superior courts,” Amery wrote. “The highest levels of Alberta’s justice system should reflect Albertans and the province they serve.”

He added: “We maintain that greater provincial involvement would strengthen public confidence in the administration of justice.”

Amery and Smith’s comments come as Albertans begin go to the polls ahead of the Oct. 19 referendum.

While it has received less attention than the issue of provincial separation, one of the 10 questions would have significant implications for who sits on Alberta courts. Question 6 asks whether voters support Alberta banding together with other provinces to seek a constitutional amendment transferring responsibility for superior court and Court of Appeal appointments from the federal government to the provinces.

As it stands, provinces have the power to appoint judges to provincial courts, while appointments to the Alberta Court of King’s Bench and Court of Appeal are made by the federal justice minister. Appointments at both levels are reviewed by independentcommittees before a final decision by the respective minister.

When it comes to Lavoie and Rothwell, the federal and provincial justice ministers had different explanations for how the appointments came together.

In an email, Amery said the appointments “marked a concrete change” in the selection process with “real input from Alberta.”

“We are grateful that the federal government listened to Alberta and acted on our advice”.

A spokesperson for the federal minister, however, said the “established federal judicial appointments process” was followed for both appointments.

“Minister Fraser has a very positive and constructive working relationship with Minister Amery and values his input and perspective on matters affecting the administration of justice in Alberta,” press secretary Jeanne Joannie Fogue Mgamgne said in an email.

“As part of the federal judicial appointments process, the minister always seeks and considers the perspectives of his provincial and territorial counterparts before making appointments to courts in their respective jurisdictions.”

Alberta Lawyers for Judicial Independence is a third-party advertiser urging Albertans to vote “no” on Question 6. They say the UCP’s push for more appointment powers — including barbs at a “Trudeau-appointed judge” and threats to block funding — undermines the independence of the judiciary while doing nothing to address concerns about bail reform and other issues.

Will van Engen, an Edmonton defence lawyer and organizer with the group, said the Lavoie and Rothwell appointments demonstrate the process working as it always has.

“They are both eminently qualified and were recommended through the non-partisan Judicial Advisory Committee process,” he said in an email. “The comments of Premier Smith and Minister Amery suggest that these appointments are somehow unique and that there has been unprecedented collaboration between the federal and provincial governments.”

That does not appear to be the case, he said.

“The Judicial Advisory Committee has always provided the provincial government with a seat at the table, along with representatives from the court, the Law Society, the Canadian Bar Association, and the federal government.”

Van Engen also disputed the idea that past judicial appointments were not respectful of Alberta.

“Justice Rothwell, who both Premier Smith and Minister Amery quite properly praise as an excellent appointment to the Court of Appeal, and who worked for Alberta Justice and Solicitor General for many years, was appointed to the Court of King’s Bench in 2020 during Prime Minister Justin Trudeau’s tenure,” he said. “So, the system worked then and it works now.”

Speaking generally about Question 6, van Engen noted just five per cent of court cases in Alberta are handled by federally appointed judges. The vast majority — including most bail hearings — are heard by judges appointed by the province, who, like their federal counterparts decide cases based on the facts and the law.

Van Engen said the idea Alberta should be able to “choose” judges the province believes reflect Alberta values — an idea Smith expressed on her radio show — undermines the independence of the judiciary while ignoring the fact provincially appointed judges already handle the majority of cases.

“The process we have right now does a pretty good job,” he said. “No system is perfect, but it does a pretty good job of vetting candidates for (Court of King’s Bench) and the Court of Appeal, and the province gets to appoint the vast number of judges that hear the vast number of cases

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