Justice Russell Brown’s abrupt departure from the Supreme Court of Canada in June has created a vacancy on the court that is expected to be filled imminently.
Brown, a former Alberta appellate judge, held one of the two court seats traditionally allocated to Western Canada. So the next candidate is expected to come from British Columbia, Alberta, Saskatchewan or Manitoba.
Most Supreme Court justices are chosen from provincial courts of appeal. Six of the eight current Supreme Court justices served on provincial appellate courts before being appointed to Canada’s highest court.
But the Liberal government’s new requirement that all Supreme Court justices be bilingual has significantly reduced the pool of candidates, sources say.
“In the context of Western Canada in particular, the pool of fully bilingual, highly qualified, highly talented candidates is very thin,” said University of Alberta law professor Steven Penney. “So you’re looking at tradeoffs. You’re potentially foregoing having the most meritorious candidates being selected to the court.”
Canadian Affairs spoke to multiple members of the legal profession about the judicial selection process. They were given anonymity upon request to avoid being seen as having expressed opinions on judges they may appear before in the future.
Requirement ‘goes too far’
In June, Ottawa amended the Official Languages Act to require that all Supreme Court of Canada judges be capable of understanding court proceedings in either official language without the assistance of an interpreter.
This legal change formalized what has been a policy of the Liberal government since 2016, when the government committed to only appointing “functionally bilingual” judges to the highest court.
The policy has created significant discussion in the legal community, with varying views on whether bilingualism should be mandatory.
“It’s understandable that in an officially bilingual nation you’d want a level of bilingualism at the court,” says Penney. “But interpreting that to require that each and every judge be functionally bilingual goes too far. Especially in the context of the regional and other forms of diversity that governments seem to want to require.”
French is not a mandatory subject in schools in Alberta, British Columbia, Manitoba and Saskatchewan. And opportunities to practice law in French in Western Canada are limited.
A source noted that a lawyer would need certain kinds of life experiences — such as attending a school in Quebec — to achieve the level of bilingualism that is now required.
“It significantly reduces the pool of candidates who would otherwise be excellent and would provide the subject-matter expertise and other diversity that would assist the court,” the source said.
According to Penney, one area of subject-matter expertise that is “sorely needed” on the court is criminal law.
Last year, 65 per cent of the appeals that the court heard concerned criminal law, according to its 2022 Year in Review. Criminally-accused persons have an automatic right to have a case heard where a judge on a province’s appellate court dissented on a point of law.
The last Supreme Court justice who was an expert in this area was Justice Michael Moldaver, who retired in 2022, a few months before he reached the mandatory retirement age of 75.
“Having one or more judges with that criminal background is an important attribute that will improve the criminal jurisprudence for the court,” said Penney.
Slim pickings
Only five of the 48 full-time judges on BC, Alberta, Saskatchewan and Manitoba’s courts of appeal are publicly known to be fully bilingual, according to Gerard Kennedy, a law professor at the University of Alberta.
Another 17 appellate judges are supernumerary, meaning they are semi-retired. While some of these justices are bilingual, no supernumerary judge has ever been appointed to the Supreme Court, says Kennedy.
The five full-time appellate judges are Justices Patrice Abrioux of the BC Court of Appeal, Jane Fagnan and April Grosse of the Alberta Court of Appeal and Marianne Rivoalen and Anne Turner of the Manitoba Court of Appeal.
Fagnan and Grosse only became appellate judges for the first time in April, while Turner followed in August. Rivoalen became Chief Justice of Manitoba this June. It would be unusual for any of them to leave their current position after mere months, Kennedy says. Justice Abrioux, on the other hand, is in his late sixties.
Poor candidates for political reasons
At the trial court level, two candidates do have the combination of bilingualism, court experience, subject-matter expertise and acceptance across ideological divides to be strong candidates, one source said. But they may be poor candidates for political reasons.
Franco-Albertan Mary Moreau, Chief Justice of the Alberta Court of King’s Bench, is well respected across the Alberta bar and practiced general litigation, including criminal law, before being appointed to Alberta’s superior court in 1994.
But if appointed, she would be the third consecutive Albertan to be appointed to fill the court’s Western seats, and the fifth of the last six. At 67, she would also mark the oldest appointment to the court since Robert Smith in 1927.
Franco-Manitoban Glenn Joyal, the Chief Justice of the Manitoba Court of King’s Bench, previously served on the province’s appeal court, has deep expertise in public law and criminal law and has written numerous high-profile decisions.
But as a white male, Joyal would not advance the government’s gender or racial diversity goals — a potentially disqualifying strike for a government that values diversity enormously, sources said.
Other ways to achieve bilingualism
There are also a number of well-respected bilingual academics in or from Western Canada. These include Catherine Dauvergne of the University of British Columbia, Peter Sankoff of the University of Alberta, Dwight Newman of the University of Saskatchewan and Aimée Craft, who is originally from Manitoba and is currently at the University of Ottawa.
However, none of these candidates would bring any judicial experience. No academic has ever been appointed directly to the Supreme Court without first serving on lower courts, according to Kennedy.
The cases that come before the Supreme Court “tend to be the most difficult legal issues in Canadian law,” said Kennedy. “The court really needs someone who can hit the ground running with a strong legal mind and ability to think through the legal issues.”
“I think that you could explore options that meet the court’s need for bilingualism without requiring bilingualism up front, including greater training or an immersive language course,” one source said. “That wouldn’t necessarily narrow the field in the same way.”
With bilingualism, diversity, age, regionalism, subject-matter expertise and court experience all important factors, the government will almost certainly have to make tradeoffs in deciding which qualifications to prioritize.
“The government will likely realize that there is no ‘perfect’ candidate,” Kennedy said.
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