THE GOVERNMENT OF CANADA, represented by Mr. Justin Trudeau, Prime Minister of Canada, and Mr. William Francis Morneau, Acting Minister of Intergovernmental and Northern Affairs and Internal Trade;
THE GOVERNMENT OF QUEBEC, represented by Mr. François Legault, Premier of Quebec, and Ms. Sonia LeBel, Minister responsible for Canadian Relations and the Canadian Francophonie;
Hereinafter referred to as “the participants”
CONSIDERING the process put in place by the Government of Canada in 2016 in order to make the process for appointing judges to Canada’s highest court more open and transparent;
CONSIDERING the creation, to that end, of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments;
CONSIDERING the participants’ willingness to make adjustments to the process for appointing three judges from Quebec to the Supreme Court of Canada, with a view to taking Quebec’s distinct legal tradition into account;
CONSIDERING the participants’ willingness to ensure a greater participation from Quebec in the process for appointing these three judges, and to pursue discussions on this matter;
CONSIDERING one of the three judges from Quebec will retire in September 2019 and it is now necessary to reach an understanding on a process to fill the vacant seat;
The participants have reached the following understanding:
Independent Advisory Board for Quebec
- An Independent Advisory Board for Quebec, distinct from the Independent Advisory Board, will be established for judicial appointments to the Supreme Court of Canada from Quebec.
Nature and mandate
- The nature and mandate of the Independent Advisory Board for Quebec will be similar to those set out in Order in Council P.C 2016-0693 for the Independent Advisory Board.
- The Independent Advisory Board for Quebec will be made up of eight members:
- two members, including the Chair of the Independent Advisory Board, nominated by the Minister of Justice of Canada;
- two members nominated by Quebec’s Justice Minister, including at least one who is not an advocate or a barrister;
- a retired Quebec judge of a Quebec superior court or of the Supreme Court of Canada, nominated by the Canadian Judicial Council;
- a practising member in good standing of the Barreau du Québec nominated by the Barreau du Québec;
- a practising member in good standing of the Barreau du Québec nominated by the Quebec Branch of the Canadian Bar Association; and,
- a legal scholar nominated by the Deans of the law schools of Quebec and of the Faculty of Law, Civil Law Section, of the University of Ottawa.
- Members of the Independent Advisory Board may be members of the Independent Advisory Board for Quebec if they meet the requirements set out in articles 3 and 5. The chair of the Independent Advisory Board is ex officio chair of the Independent Advisory Board for Quebec.
Use of French
- The Independent Advisory Board for Quebec must be able to carry out its work in French, in order to better respect Francophone candidates and to reflect the equality of status of both of Canada’s official languages. Accordingly, all of the persons referred to in article 3 must be functionally bilingual.
Process followed by Independent Advisory Board for Quebec
- The Independent Advisory Board for Quebec will both receive applications and proactively seek out applications from interested candidates.
- Once the period for submitting applications has expired, the Independent Advisory Board for Quebec will review the applications and will compile a shortlist of three to five names.
- In its assessment of the candidates, the Independent Advisory Board for Quebec will be guided by the criteria that have been made public by the Government of Canada and which seek to ensure that Supreme Court of Canada nominees are outstanding jurists, are functionally bilingual and reflect Canada’s diversity.
Consultations with Ministers of Justice
- Once the shortlist has been finalized by the Independent Advisory Board for Quebec, the Minister of Justice of Canada will notify Quebec’s Justice Minister and will provide her with the list.
- Canada’s Justice Minister will then proceed with consultations on the shortlist with the Chief Justice of Canada, relevant Cabinet ministers, opposition Justice critics as well as members of both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs. Quebec’s Justice Minister will also consult on the shortlist, including with the Chief Justice of Quebec.
- Quebec’s Justice Minister will then share the results of her consultations with the Premier of Quebec and seek his advice. The Premier of Quebec will then send Quebec’s recommendation to the Prime Minister of Canada.
- It is understood that the information to be shared and the consultations to be undertaken, as set out in articles 9, 10 and 11, will be done in a confidential manner.
Decision of Prime Minister of Canada
- Following consideration of the recommendations received from Canada’s Minister of Justice and the Premier of Quebec, the Prime Minister of Canada will select the candidate and announce the nomination.
- Canada and Quebec intend to respect the appointment process set out in this arrangement to fill the seat that will be left vacant on the Supreme Court of Canada following the retirement of Justice Clément Gascon.
Should there be another vacancy among the Quebec seats on the Supreme Court of Canada before the parties reach an understanding on another process, the process set out in this arrangement will apply.
- This arrangement may be reopened at the request of one of its participants, with at least six months’ notice, and may be altered with the written consent of the participants. Failure to reach an understanding on its amendment, the arrangement will continue to apply.
- This arrangement will come into effect on the date of the last signature.