Supreme Court lacking expected applicants for empty seat as court set to resume in October

  • September 18, 2023

By Sean Fine for The Globe and Mail

In a field made thin by a shortage of bilingual candidates, francophone judges from Alberta and Manitoba have emerged as leading contenders to fill a seat on the Supreme Court of Canada that has been vacant since the resignation of Russell Brown in June.

The court resumes hearing cases on Oct. 11, and Chief Justice Richard Wagner said publicly when Mr. Brown resigned on June 12 that Prime Minister Justin Trudeau should promptly exercise the necessary care and consideration in choosing his successor.

But few, if any, judges from the courts of appeal of Western Canada have applied, as some of the West’s top legal talent sits out the contest. Appeal courts are above trial courts in the legal hierarchy and have been the source of most Supreme Court appointments.

Mr. Brown’s resignation averted a public inquiry that the Canadian Judicial Council was moments away from calling into allegations that he harassed two women at an Arizona hotel last winter. He denied the allegations.

By tradition, two of the nine Supreme Court judges are from the West. Mr. Brown had been a law professor and judge in Alberta, so his successor must also be from the West.

Mr. Trudeau has made bilingualism in English and French a requirement for new Supreme Court judges – before they are appointed. If he picks either Chief Justice Mary Moreau of the Alberta Court of King’s Bench or Chief Justice Glenn Joyal of the Manitoba Court of King’s Bench, it would be the first time a francophone from the West has been appointed. Chief Justice Joyal, who comes from a francophone father and Polish-Canadian mother, is a former appeal-court judge.

Both judges have some disadvantages. Chief Justice Moreau is in her mid-60s, giving her little runway – the mandatory retirement age for Supreme Court judges is 75. (Her office declined to give her age when contacted.) Chief Justice Joyal, 63, was appointed by the Conservative government of Stephen Harper to his judicial positions on superior courts.

And both judges have a key attribute: They are experienced enough, especially in the critical areas of criminal and constitutional law, that they would hit the ground running. That is important for a court that has functioned short-handed since Feb. 1, when Mr. Brown, a workhorse on the court, stopped hearing cases. In fact, he was not allowed to participate in deciding another dozen cases on which he had sat since last September.

“The court has clearly gotten behind,” Gerard Kennedy, who teaches law at the University of Alberta, said in an interview. “I think having someone with significant experience would be helpful, given what the court has recently gone through.”

The dearth of applicants from appeal courts may open the door to practitioners, academics or bilingual judges on trial courts, such as Justice Naheed Bardai of Saskatchewan’s Court of King’s Bench, who as an Ismaili Muslim would add to the court’s religious diversity, or Justice Graeme Mitchell of the same court, who is gay.

One strong judge, Federal Court Justice Paul Favel, a member of the Poundmaker Cree Nation of Saskatchewan, said through a court spokeswoman that he “has not applied due to the requirement that a nominee be bilingual in French and English.”

If the Prime Minister, who has been falling in the polls in recent weeks, is seen not to value experience, it could hurt him politically, Prof. Kennedy said.

“What the government doesn’t want is a headline where the person appointed isn’t known. It would feed into the narrative that the bilingualism requirement is too harsh an instrument to achieve a legitimately noble policy goal,” he said.

If the Prime Minister chooses Chief Justice Moreau, he would establish for the first time a majority of women on the Supreme Court – a sequel of sorts to his father’s appointment of the court’s first female member, Bertha Wilson, in 1982.

But four of the past five Supreme Court appointments from the West have been from Alberta. When Mr. Brown was on the court, both its Western members were deemed to be Alberta judges because they had come from the Alberta Court of Appeal.

While the contest pits identity politics and gender diversity against regional politics and diversity, some legal observers hope the Prime Minister does not overemphasize those issues in making his choice.

“Those small-p political issues are a reality – I get that,” Neil Wittmann, a retired chief justice of the Alberta Court of King’s Bench, said in an interview. “That said, I think those kinds of attributes shouldn’t outweigh the necessity for someone with integrity, an extremely intense work ethic and an incredible intellect. Speaking for myself only, I would place more weight on the latter attributes.”

Although Alberta is widely perceived to have had more than its fair share of Supreme Court appointments, it may have a real shot again because appeal-court judges in other provinces have refrained from applying for the vacant seat.

The lack of appeal-court applicants is striking because, since 1982, the appeal courts of the provinces and the Federal Court of Appeal have directly provided 26 of the 32 new Supreme Court judges.

The Globe and Mail was unable to verify that anyone from B.C.’s appeal court had applied for the job. Two legal insiders told The Globe they also were not aware of anyone from the appeal court applying. The Globe agreed not to name the sources so they could speak freely about a confidential process. Some potential candidates may prefer to compete for the B.C. chief justice’s job, which becomes vacant Oct. 1.

The Alberta appeal court has some bilingual judges, but most, like Chief Justice Ritu Khullar, are relatively recent appointees. Saskatchewan hasn’t had a turn since Emmett Hall, who served from 1962 to 1973. But according to court spokeswoman Dawn Blaus, the appeal court has just one bilingual judge, who is semi-retired. In Manitoba, half of the eight full-time positions on the appeal court were vacant as recently as May.