Section 97 of the Constitution Act, 1867

Section 97 reads:

Selection of judges in Ontario &c.
97. Until the Laws relative to Property and Civil Rights in Ontario, Nova Scotia, and New Brunswick, and the Procedure of the Courts in those Provinces, are made uniform, the Judges of the Courts of those Provinces appointed by the Governor General shall be selected from the respective Bars of those Provinces.^[7]

Section 97 is found in Part VII of the Constitution Act, 1867, dealing with the judicature. Section 97 has not been amended since the Act was enacted in 1867.

Section 97 regulates the appointment of judges in the common law provinces (all provinces other than Quebec). Together with section 98 (which applies in Quebec), section 97 ensures that the courts of each province have judges who are knowledgeable about the law of the province, by requiring that judges be appointed from the Bar of the province where they will serve.

The distinction between this section and section 98, which provides for the appointment of judges for the Quebec courts, is that all the provinces except Quebec use the common law, while Quebec law is based on the civil law. A special provision is therefore needed for Quebec judges.^{[8]: 316–317}

The reference to laws and procedure being made uniform relates to section 94, which anticipates that the common law provinces would agree on making their laws uniform and then transferring that jurisdiction to the federal Parliament. That provision has never been used, so judges are still appointed from the Bar of each province.^[8]: 317