Premier Danielle Smith wielded a striking figure earlier this month to make her case for giving her province more say in how the federal government picks upper court judges for Alberta.

“Especially since 80 per cent of the judges or so have been demonstrated to have Liberal party donations, I don’t know why anyone would think that the process we have right now is free of politics,” she told reporters.

Eighty per cent? Four in five?

If that were true, it would paint a picture of a judicial appointment system rife with partisanship, at levels previously unseen in other analyses of judges’ donation records, either academic or journalistic.

It is not true. The single media source Smith got that fact from has since corrected it.

Nor does it correspond with CBC News’ own analysis of a decade of Ottawa’s picks for the Court of King’s Bench in Alberta and the province’s Court of Appeal.

Among 89 Alberta judges the federal government named or promoted since the Liberals took office in 2015, the names of 20 match up with Liberal party donors in the Elections Canada database. That amounts to 22 per cent of appointees who, before they got appointed, gave to the party that chose them.

That’s nearly identical to results from the analysis of 89 provincial court judges and justices of the peace named by the Alberta government since the UCP took office in 2019, cross-referenced with Elections Alberta’s records of donors to that party and its predecessors, the Wildrose and Progressive Conservative parties.

Of those, the names of 19 provincial judges match up with donors who gave to the UCP or its previous incarnations before their appointments.

Provincially and federally, it’s been a long-standing practice for governments in power to show some favouritism toward supporters of the ruling party, said Erin Crandall, an Acadia University political scientist who has studied partisanship and court appointments.

And it happens, whether a Conservative or Liberal party is in charge. “You see these flips when you see changes in the governing party,” Crandall said.

However, the provincial Justice Minister Mickey Amery insinuated last week that Alberta is more immune from such political connections, when he made the same incorrect statement as the premier had.

“We know from the statistics that came out in recent years, and the reporting that came out in recent years that a vast majority of those federal appointees did have political contributions,” he told reporters on Friday. “We try to avoid that in this province.”

Alberta’s premier began targeting federal court appointments in a January letter to Prime Minister Mark Carney. In it, Smith threatened to withhold support funding for new King’s Bench and Court of Appeal appointees unless Ottawa changed its selection committee and process to give the province more influence over choices. 

Last week, Smith announced that Albertans will vote in October on whether they’d like the Constitution to be amended to put the province, not the feds, in charge of higher court appointments within Alberta. It’s among the nine referendum questions the premier has scheduled for Oct. 19.

Asked where the 80 per cent number came from, the premier’s office pointed to a newspaper column from earlier this month. It had stated: “However, since the Liberals came to power in 2015 nearly 80 per cent of the judges they have appointed were donors to the Liberal party before they became judges.”

This article was subsequently corrected to qualify that statement  as “nearly 80 per cent of judicial appointees who had made political donations had given to the Liberals.”

This is in line with a 2023 investigation by the National Post and the Investigative Journalism Foundation. It found that while 76.3 per cent of the federally appointed judges who made donations have given to the governing Liberals, only 18.3 per cent of the 1,308 judicial and tribunal appointees examined had given to anybody at all.

This means that nationally, 14 per cent of those federal appointees gave to the Liberal party before getting picked.

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While Smith has not publicly acknowledged that she made an inaccurate point, she did hew closer to what’s accurate when she again argued her case on judicial appointment reform last week.

She noted that most judges don’t donate and said she’s glad that’s so, and added: “but when you look at the judges who have, 80 per cent of them gave money to the Liberal party. How is that not skewed?”

Moments after Smith made this revised statement, Amery made the aforementioned inaccurate claim.

Crandall can guess why the premier initially reached for the biggest and most politically charged number she could find.

“There’s an effort there to create a crisis that the system is broken, and we need to reform it. So I think there’s a reason why she would want to use as high a number as possible,” she said. 

“If it’s the case that it’s only something more like 25 per cent and that that number has been holding steady over the last three decades, then the argument for reform is significantly weakened.”

Various studies into judicial appointees’ political contributions have produced different figures, but none of them nearly as high as Smith first erroneously suggested.

A 2010 CanWest News Service analysis found that 15 per cent of judges named during the first four years of the Stephen Harper-led Conservative government had recently donated to that party. 

During the Liberal government era that preceded Harper, one academic study of judge selections in 2003 found 41 per cent of them to be “probable” supporters of the Liberal party, while another study spanning 1989 to 2003 — during both Progressive Conservative and Liberal governments — found that 30.6 per cent “very likely” had given to the party in charge at the time.

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CBC News’ analysis of Alberta judicial appointments under the federal Liberals (since late 2015) and the Alberta UCP government (since 2019) compiled lists of the judges and justices of the peace appointed at the provincial court, Court of King’s Bench and Court of Appeal.

Then, we cross-referenced all the names of provincial appointees with a searchable Elections Alberta donor database, and federal ones with Elections Canada (both databases date back to 2004). A record was deemed a match if the judge’s full name, usually with middle initial, aligned with a donor record, and if geographical and biographical details also corresponded.

At each level, there was a small handful of names that showed up in both donor and appointment lists, but were only deemed “possible” matches because they had common names (i.e. Smith or Cho). These were not included in the numbers CBC’s analysis deemed to be matches.

Amery may have suggested that Alberta’s system doesn’t produce judges with the same political ties as the federal system does. But the numbers do not bear that out, given that provincial judges appear to be as likely to have previously donated to the party that appointed them — a bit more than 20 per cent of the time.

Among the judges and justices of the peace appointed since Smith became premier in late 2022, the number is slightly higher: 25.5 per cent had given to the UCP or its forerunners, the Tories and Wildrose.

Two appointees had noticeable political affiliations that go beyond donating to the party.

Last year, the party elevated former Progressive Conservative premier David Hancock as assistant chief justice, after first being named to the bench in 2017 when the NDP was in office. Also last year, Emem Madu was appointed to the provincial court — she is the wife of former UCP justice minister Kaycee Madu.

The offices of Amery and Smith declined to answer CBC News’ questions about the political connections of Alberta’s own appointees.

Instead, an Amery spokesperson sent a statement that reiterated its goal of changing the federal judicial selection system.

“Alberta’s government believes that there should be a truly collaborative process to select highly qualified candidates for judicial appointments,” Heather Jenkins wrote in an email. 

“In the spirit of collaboration, Alberta’s government wants to work together with the federal government to identify candidates through the establishment of a Special Advisory Committee with equal membership from the Alberta and federal government.”

For judge appointments by both the federal and provincial governments, the respective justice minister makes the final decisions, after candidates are vetted by advisory committees.

The federal committee contains up to three appointees by the federal government, one by the province, and one nominee from each of the Law Society of Alberta, Canadian Bar Association and the Alberta chief justice.

Provincially, the Alberta Judicial Nominating Committee also has one representative from the bar association, law society and the provincial court. It also has eight members appointed by the provincial justice minister.

Alberta’s current nominating committee currently includes Harvey Cenaiko and Pat Nelson, both former cabinet ministers under the provincial Tory government of Ralph Klein. Among the other six appointees, three had names which matched up with donors to the UCP, PCs or Wildrose, and a fourth was a possible match with a common surname, but attempts to reach that individual were not successful.

Two federal appointees currently sit on Alberta’s federal advisory panel, and one of them is recorded to have donated to the Liberals. The sole provincial nominee has no donation record with Elections Alberta.

A spokesperson for federal Justice Minister Sean Fraser said the committee helps preserve judicial independence from the political branch.

“The independent judicial advisory committees protect that independence by keeping judicial appointments at arm’s length from political influence,” said Lola Dandybaeva. “After considering [the] needs of a court, the government appoints the most qualified candidates to the bench among those recommended by judicial advisory committees.”

Fraser has already rebuffed Smith’s demands for a new appointment process tilting sway to the provincial government. 

The ethics code for federal judicial advisory committees specifically guards against considering a potential justice’s politics. “No questions concerning a candidate’s political views or political affiliation are to be raised,” it states. There is no such language in the Alberta nominating committee’s code of conduct but it does state members should act with “impartiality and integrity.”

While both levels have long said their own process is meant to be free of politics, the frequency of judges having donated to the party that appointed them shows that is still a perceived norm within the legal and political communities, said Crandall, the political scientist.

“For some, it is understood that part of the way that you position yourself well to get a judicial appointment is to make a donation to the political party in power,” she said.

It’s not good for public perception, she said, and governments and parties could easily address it if they wished.

“I think the fact that it continues to persist demonstrates that it has a low political cost to the party in power,” Crandall said. “And there must be benefits to it that outweigh whatever political costs come from a few negative news stories every couple of years.”