Viewpoint 42-3: Tradition Triumphs: A New Guard for Canada’s Supreme Court - LawNow Magazine

Viewpoint 42-3: Tradition Triumphs: A New Guard for Canada’s Supreme Court

Viewpoint column logoOn June 12, 2017, the Supreme Court of Canada hinted that it would be making an “announcement of interest” later that afternoon. What could it possibly be, many of us legal beagles wondered. Was it an unexpected judicial retirement? Could it be that the Chief Justice of Canada herself was retiring?

Amid the predictions among legal academics, lawyers, and journalists alike, the Supreme Court of Canada released the official news — the Honourable Chief Justice of Canada Beverley McLachlin would be retiring from the Supreme Court, effective December 15, 2017 (nine months before her mandatory retirement date in September 2018).

In the six months since this announcement, opinions and predictions were focused on two questions: 1) who will be the next Chief Justice of Canada, and 2) who will fill the seat on the Court left vacant after McLachlin retires.  With these selections now made, attitudes are also widespread on what went right and what went wrong in the process.

Who will be the next Chief Justice of Canada?

The strong views that emerged on these two questions showed the investment that everyone from legal academics to members of the public had in the future of our nation’s highest court.

The last appointment to the Supreme Court from Saskatchewan was 55 years ago.

The importance of the role of the Chief Justice of Canada cannot be overstated. The Chief Justice is the highest ranking judge in Canada, representing the Canadian judiciary both at home and abroad, and maintaining a vital voice in ensuring the rule of law is advanced without succumbing to any political pressure.  Interestingly, the Chief Justice can become the Administrator of Canada and exercises all the powers of the Governor General in the event the Governor General dies, becomes incapacitated, is removed, or is absent from the country for more than a month.

When it came to guessing who would fill this judicial office, however, it seemed people were divided on who would be the best fit. A number of the current judges on the Court are relatively new appointments with limited experience. Many believed Justice Rosalie Abella was the logical choice for Chief Justice given her 13-years of experience on the Court and her position as the most senior justice after McLachlin.

Others, however, seemed to believe the Prime Minister would follow the convention of rotating Chief Justices between those from the civil law jurisdiction and those from the common law – that is, alternating between Quebec and the rest of Canada. In that spirit, Justice Richard Wagner from Quebec who had been on the Court since 2012 was the favoured choice if tradition were to trump seniority.

Altogether, only 1% of all Canadian judges are Indigenous. Ultimately, it was this traditional choice that Prime Minister Trudeau made when he named Justice Wagner the new Chief Justice on December 12, 2017. The appointment reflects a respect for the tradition of alternating chief justices between the common law and civil law traditions. Notably, the appointment also creates stability in the Court for at least the next 15 years. In comparison, Justice Abella would have had a shorter tenure as Chief Justice because she will retire in 2021. Chief Justice Wagner meanwhile faces mandatory retirement from the Court in 2032.

As our longest-serving Chief Justice, McLachlin leaves the Court after her 17-year tenure as Chief Justice (and 28 years on the Court altogether) having been known for speaking out about access to justice and Indigenous rights. The legacy that McLachlin leaves is in many ways difficult to follow for new Chief Justice Wagner. Lawyers and academics will want to see whether Wagner is able to achieve the same level of consensus-building that McLachlin came to be known for and whether he moves the Court away from what others consider “judicial activism”.

Who will fill the vacant seat on the Court?

Perhaps more than the selection of the Chief Justice, it was the question of who would fill the vacancy on the Court that engaged the minds of legal academics, lawyers, journalists, and other critics across Canada. The common points of discussion related to maintaining regional representation on the Court, ensuring a gender balance, focusing on an Indigenous judicial appointment, and upholding the bilingual language requirement for new judicial appointees.

For many, Justice Martin is an excellent choice with remarkable qualifications and credentials as an educator and constitutional law advocate. The most-discussed issue, however, was whether the Prime Minister would translate his words into action to truly embrace the spirit of reconciliation and use this opportunity to finally appoint an Indigenous judge to the Supreme Court of Canada. In the entire history of the Supreme Court (since 1875), there has never been one non-white judge who served on the Court. Not only did it seem like time for an Indigenous judge, but the view was that Canadians need an Indigenous person on the Supreme Court.

The two individuals whose names came up consistently as topmost Indigenous candidates for the spot on the Supreme Court were University of Victoria law professor John Borrows (who is Anishinabe/Ojibway and member of the Chippewa of the Nawash First Nation in Ontario) and Saskatchewan provincial court judge Mary Ellen Turpel-Lafond (a member of the Muskeg Lake Cree Nation).  Turpel-Lafond was also the BC Representative for Children and Youth for almost 10 years.

Both Borrows and Turpel-Lafond have enviable qualifications and credentials.  Borrows is a Canada Research Chair in Indigenous Law and considered a leading scholar in the area of Indigenous legal traditions. Turpel-Lafond holds law degrees from Harvard University and Cambridge University, and she was only 35 when she was appointed to the Saskatchewan Provincial Court. Turpel-Lafond also pointed out that she thinks Borrows is extraordinary and would be “one of the strongest people we could get” on the Court.

Given both Borrows and Turpel-Lafond were from the western Canada region as well, they seemed liked logical and sensible choices for appointment. The possible “glitch” with Turpel-Lafond’s eligibility is that she was only at the Saskatchewan Bar for seven to eight years before being appointed a provincial court judge. The Supreme Court Act indicates that a candidate must be a current or former barrister of at least 10 years standing or a current or former judge of a superior court of a province. To be considered, Turpel-Lafond would first have to be elevated to a superior court.

Missed opportunities

Despite all the expectation for an Indigenous judicial appointment, many were slightly surprised that the Prime Minister appointed a non-Indigenous judge from Alberta – Justice Sheilah Martin. The appointment was met with mixed reactions. The issue was not with the selection of Justice Martin herself, but with the process of selection. For many, Justice Martin is an excellent choice with remarkable qualifications and credentials as an educator and constitutional law advocate. She is trained in both the common law and civil law traditions, has a doctorate in law from the University of Toronto, is bilingual, and has been known for being an advocate for equality and women’s issues.

The two individuals whose names came up consistently as topmost Indigenous candidates for the spot on the Supreme Court were University of Victoria law professor John Borrows (who is Anishinabe/Ojibway and member of the Chippewa of the Nawash First Nation in Ontario) and Saskatchewan provincial court judge Mary Ellen Turpel-Lafond (a member of the Muskeg Lake Cree Nation). On the other hand, Indigenous lawyers are understandably disappointed and frustrated at the maintenance of the status quo and the missed opportunity to have an Indigenous judge on Canada’s highest court. Reportedly, none of the final three applicants the Advisory Board shortlisted for the Prime Minister were Indigenous. Given the number of Indigenous cases that are brought before the courts (and ultimately to the Supreme Court in many instances), Indigenous representation on the Court seems both vital and sensible.

Former Prime Minister Kim Campbell is the chair of the Advisory Board that streamlines candidates. She says the pool of qualified Indigenous candidates is still small, and that there are a number of good people who did not apply.

Indeed, the statistics released by the Government of Canada about those applying to sit as federally appointed judges show the limited number of Indigenous judges who advance through the application stages. Of the 997 judicial applicants received between October 2016 and 2017, only 36 applicants were Indigenous. Only five Indigenous candidates of a total of 129 applicants were ranked in the “highly recommended” category. Lastly, of the 74 candidates appointed to judicial positions from 2016-2017, only three candidates were Indigenous. Altogether, only 1% of all Canadian judges are Indigenous.

The issue then is that, in general, there needs to be more Indigenous judges appointed at the provincial and superior court levels to allow for their ultimate advancement to the Supreme Court. Progress is slow, but it is happening. For example, in late November, Paul Favel – a Poundmaker Cree Nation lawyer from Saskatchewan specializing in Indigenous law – was appointed a federal court judge.

Speaking much before the vacancies on the Supreme Court, Turpel-Lafond discussed Indigenous representation in the courts with Lawyer’s Daily and highlighted the importance of “Indigenizing” the justice system to end the incredible systemic racism prevalent in the courts. In her interview, she said the following which seems most fitting in moving forward:

Appointing the first Indigenous judge to a bench could “make you feel like you have done a lot,” she remarked. “Or you could actually change systems, and then you will have done a lot.”

Regional divisions – Saskatchewan and BC left out

Amid these discussions on Indigenous appointments, however, there is less discussion about the regional divisions created with the new appointment. Those from British Columbia and Saskatchewan have also missed out on another spot on the Court. Currently, there are three judges from Quebec, three from Ontario, two from Alberta, and one from Newfoundland. The last appointment to the Supreme Court from Saskatchewan was 55 years ago.

Ultimately, it was this traditional choice that Prime Minister Trudeau made when he named Justice Wagner the new Chief Justice on December 12, 2017. With McLachlin’s departure, British Columbia no longer has representation or a voice on the Supreme Court. This lack of representation also ties in with the concerns about Indigenous representation. The issues that involve Indigenous groups in British Columbia are often unique from those in the rest of Canada. The Supreme Court stands to lose out on both a British Columbia perspective and Indigenous perspective by having a judicial appointment that neither represents the region or Indigenous peoples.

It may be a few years before we can move forward in addressing issues with Indigenous representation on the Court. The next likely vacancy on the Supreme Court will be when Justice Abella retires in 2021. Justice Moldaver retires a year later in 2022. However, for either vacancy, the judicial appointments will be filled from Ontario. This may further limit the number of eligible Indigenous candidates.

The western Canadian region – namely, British Columbia and Saskatchewan – will have to wait much longer for their regional seats to become vacant. Justice Brown faces mandatory retirement in 2040, whereas Justice Martin is likely to face her mandatory retirement about 15 years from now.

Moving forward, the pressure on the Prime Minister (whether Trudeau or otherwise) will be even higher for the future appointments to ensure that Indigenous representation, regional representation, and bilingualism are properly considered.

If anything, however, the past several months have shown how vital it is to engage in such discussions. Proper representation on our courts ensures that the Canadian public remains confident in our justice system and they feel that the composition of our courts represents the diversity of views and backgrounds that constitute our nation.

Authors:

Tasneem Karbani
Tasneem Karbani is the Education and Communications Coordinator with the Centre for Constitutional Studies at the University of Alberta, Edmonton, Alberta.
 


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