“There is no question that by insisting on a level of professional bilingualism in candidates from Western Canada, a consequence of that insistence is that the number of candidates is significantly reduced,” said University of Alberta law professor Gerard Kennedy, who has screened the bios of potential candidates from the West.
“There are very good rationales for the bilingualism requirements,” Kennedy remarked. “But there are costs in terms of reducing the number of candidates. And I certainly think it’s fair to say that [former Supreme Court of Canada chief justices from the west] Beverly McLachlin and Brian Dickson were not professionally bilingual when they were appointed, but they managed to become so [and] they certainly contributed a lot.”
Gerard Kennedy, University of Alberta
Moreover, highly qualified female jurists might have an edge in the selection process since appointing a fifth woman to the present four-man/four-woman court might be a global first — the first known female-majority apex court, a possible historic achievement not only for women but also for Prime Minister Justin Trudeau’s avowedly feminist government.
To that end, the soon-to-be announced “advisory board” that will draw up the confidential short list of three to five “functionally bilingual” qualified candidates for the prime minister’s consideration, has been directed expressly to support the Liberal government’s “intent to achieve a gender-balanced Supreme Court of Canada” — and one that “also reflects the diversity of members of Canadian society, including Indigenous peoples, persons with disabilities and members of linguistic, ethnic and other minority communities including those whose members’ gender identity or sexual orientation differs from that of the majority.”
(Trudeau has picked all of his five Supreme Court appointees from the board’s short lists, but its terms of reference stipulate that if the prime minister wants to go outside the shortlist, he may “request” the board to “provide names of additional qualified candidates who are functionally bilingual.”)
Also in play for this vacancy is regional rivalry. Of appointees to the Supreme Court from western Canada over the past 50 years, four hailed from the Alberta courts (Justices Brown, Sheilah Martin (incumbent), Jack Major and William Stevenson); two from Manitoba’s courts (Justice Marshall Rothstein and Chief Justice Dickson); and two from British Columbia’s courts (Chief Justice McLachlin and Justice William McIntyre).
By contrast, Saskatchewan has not had a judge at the Supreme Court of Canada since Justice Emmett Hall retired in 1973 — despite that province boasting qualified possible candidates over the years, including fluently bilingual Saskatchewan Court of Appeal Justice Georgina Jackson, a jurist widely respected within the Canadian legal community.
“It would be nice to see one from Saskatchewan,” Mark Dolan of Saskatoon’s Lakefield LLP told Law360 Canada. “I think all our judges with the Court of Appeal are very strong.”
Lawyers in British Columbia favour the appointment of a B.C. jurist, with three provincial ex-attorneys general arguing July 17 in a Vancouver Sun op-ed that their province also merits a permanent Supreme Court seat as one of the two spots reserved for the west by tradition.
“Re-establishing B.C.’s entitlement to representation in the Supreme Court is both a matter of fairness to Canada’s third-largest province and supportive of this country’s broader democratic aspirations,” Andrew Petter, Geoff Plante and Brian Smith wrote.
In addition, there is also the key question of what kind of expertise and experience would most benefit a bench that is currently crowded with ex-civil litigators and former senior public servants, who face a burgeoning docket of criminal cases (65 per cent of appeals heard in 2022 involved criminal law). The advisory board and federal Justice Minister David Lametti will consult with Supreme Court of Canada Chief Justice Richard Wagner about the court’s needs.
Steven Penney, University of Alberta
“Having a lifetime of professional experience in the criminal law does bring a different perspective, and a needed perspective,” Penney emphasized. “That does, I think, bring a certain level of wisdom, experience and gravitas to the field. It’s not the end all and be all, of course, but I do think it’s something that has been missing for some time now and is needed — I would say even sorely needed — on the court.”
Age is another wildcard in the mix of factors the government is likely to consider. How old is too old to serve on the Supreme Court, given that retirement is mandatory at age 75? Is it better to appoint a jurist at a younger age, in the hopes that they will serve for decades? Or is the significance of a candidate’s age highly individualistic, and unpredictable given its interaction with other relevant factors like health, experience and commitment?
(History has shown that a number of strong contributors to the Supreme Court, who were appointed at comparatively young ages, opted to retire long before age 75. They included Justice Marie Deschamps who left 10 years after she was appointed at age 49, Justice Charron, who served seven years after her appointment at age 53, and Justice Clément Gascon who retired five years after he was appointed at age 53. Most recently, Alberta’s Justice Brown stepped down at age 57 after fewer than eight years at the top court, but he was still in his 40s when the previous Conservative government appointed to him to succeed Justice Rothstein, a Harper government appointee elevated from the Manitoba Court of Appeal at age 65, but who served, with energy and distinction, for almost a decade.)
Justice Joyce DeWitt-Van Oosten
Identifying the realistic “contenders” for Supreme Court appointment, let alone all the highly qualified potential applicants for the western vacancy, was not possible given the strict secrecy of the appointment process. Notably, Law360 Canada was unable to verify the French-language capabilities of some jurists whose names were suggested as potentially leading candidates for the Supreme Court (if they applied).
For example, British Columbia Court of Appeal Justices Joyce DeWitt-Van Oosten and Leonard Marchand both declined to tell Law360 Canada whether they consider themselves functionally bilingual.
Justice DeWitt-Van Oosten, an ex-senior Crown seen as a potential successor to Chief Justice of British Columbia Robert Bauman who retires Oct. 1, 2023, is said to have a deep knowledge of the criminal law as well as the respect of the criminal bar. She has been taking French lessons and has spoken in French at public events.
Justice Leonard Marchand
He is a member of the Okanagan Indian Band and, among his accomplishments when he was a litigator, he successfully pursued civil claims of historic child abuse in institutional settings, including representing many residential school survivors, and signed and helped negotiate the Indian Residential Schools Settlement Agreement in 2006, the largest class-action settlement in Canadian history.
The field of functionally bilingual possible candidates — based on their publicly available bios, discussions with lawyers, judges and academics, and other research — includes:
Manitoba
Chief Justice Glenn Joyal
The McGill law graduate, who completed graduate courses in public law and political theory at Oxford, became a provincial court judge in Manitoba in 1998, and was promoted by the previous Harper government to the Manitoba Court of Appeal in 2007, and then to associate chief justice of the Manitoba Court of Queen’s Bench (now King’s Bench) in 2009, followed by his 2011 appointment as chief justice of the King’s Bench.
Manitoba Court of Appeal Chief Justice Marianne Rivoalen was plucked by Trudeau from the Federal Court of Appeal to lead the Manitoba Court of Appeal on June 1. 2023 — i.e. before a Supreme Court vacancy opened up June 12 with Justice Brown’s departure.
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Chief Justice Marianne Rivoalen
An ex-civil litigator, she was senior counsel and team leader with Justice Canada’s aboriginal law services group, responsible for its lawyers in Manitoba handling residential school litigation. Before that, she had a broad litigation and advocacy practice in both official languages with two large Winnipeg firms.
Fluently bilingual former University of Manitoba law professor Gerald Heckman taught administrative, constitutional and language rights law for 17 years before his appointment straight to the Federal Court of Appeal June 1, 2023. Admitted to Ontario’s bar in 1998, he earned a doctorate in law from Osgoode Hall Law School in 2008, after being conferred his master of applied science in electrical engineering from the University of Waterloo in 1992 and his law degree from the University of Toronto in 1995.
As a board member and president of the Association des juristes d’expression française du Manitoba, he promoted initiatives to enhance access to justice in both official languages.
Saskatchewan
Justice Georgina Jackson
An expert on judicial ethics, Justice Jackson has authored many articles and organized many educational conferences, including on Indigenous law and reconciliation. Her name has circulated within the legal community for previous Supreme Court vacancies, in part due to her extensive volunteer contributions as a lawyer, and then as a judge to such bodies as the National Judicial Institute and the Canadian Institute for the Administration of Justice.
Admitted to the bar in 1977, the University of Saskatchewan law graduate was appointed directly to the Court of Appeal, having practiced with MacPherson, Leslie and Tyerman and served previously as a Crown, and then as the Master of Titles and executive director of the property registration branch with the Saskatchewan Department of Justice.
University of Saskatchewan College of Law professor Dwight Newman has been the Canada Research Chair in Indigenous Rights in Constitutional and International Law for the past decade, and holds law degrees from Saskatchewan and Oxford.
As a Rhodes scholar, he studied and obtained a doctorate in legal philosophy from Oxford in 2005 and a master’s degree in 2003. Formerly a law clerk to then-Supreme Court of Canada Chief Justice Antonio Lamer and then-Supreme Court Justice Louis LeBel, Newman’s research areas include aboriginal law and Indigenous peoples’ rights, constitutional law, legal theory and private international law.
His bio says more than 200 of his writings have been published, including 15 books, and his work is cited in judicial decisions, including at least 14 Supreme Court of Canada decisions. As a member of the Ontario and Saskatchewan bars, he has provided legal counsel to industry, government, and Indigenous communities, focused mainly on constitutional issues associated with resource development, and has also done consulting work for international investment entities on related issues.
Alberta
Before joining the King’s Bench in 1994, the chief justice practised criminal law, constitutional law and civil litigation in Edmonton where she litigated some landmark cases involving minority language rights and the Charter.
A co-founder of the Association des juristes d’expression française de l’Alberta, she served for years as co-chair of the National Judicial Institute’s annual spring national criminal law conference and is a former president of the Canadian Superior Courts Judges Association.
Alberta Court of Appeal Justice Jane Fagnan was promoted April 24, 2023, by the Trudeau government from the Court of King’s Bench, to which it appointed her in 2018. Before that, she was legal counsel with the Court of King’s Bench in Edmonton for two decades, working on substantive matters involving criminal, administrative, family, commercial, estate and other areas of law.
She also participated in the work of various court committees and created educational resources, provided language assistance on French files, and played a primary role in the administration of the court’s articling program, her bio says.
Admitted to the Alberta bar in 1992, she earned an LL.B. from Université Laval in 1990 and, in 2011, she received an LL.M. from Osgoode Hall Law School, with a double concentration in criminal law and health law.
Alberta Court of Appeal Justice April Grosse was also promoted April 24 by the Trudeau government from the King’s Bench, to which it had appointed her in 2018. Admitted to Alberta’s bar in 1999, she earned her LL.B from the University of Saskatchewan, where she was a gold medallist.
Before the bench, she was a partner with Bennett Jones for 12 years, and was also a member of its board of directors. Her diverse litigation practice included commercial, estates, policing and administrative law matters, her bio says. She was recognized by publications such as Chambers Global, Lexpert, and Benchmark’s Top 25 Women in Litigation in Canada.
British Columbia
Justice Elizabeth Bennett
B.C. Court of Appeal Justice Harvey Groberman (supernumerary) was called to the B.C. bar in 1985, after obtaining a J.D. from the University of Toronto in 1982. He was appointed to the B.C. Appeal Court in 2008, following his 2001 appointment to the B.C. Supreme Court. He has presided over proceedings in French.
He was also appointed to the Yukon Court of Appeal in 2008, following his appointment to the Yukon Supreme Court in 2005. He has been a presenter at numerous conferences, including those organized by the Continuing Legal Education Society of British Columbia and the Canadian Bar Association.
Official photo of the Supreme Court of Canada's judges in fall 2022: Supreme Court Collection
Correction: Law360 Canada misspelled the surname of Federal Court of Appeal Justice Gerald Heckman. We apologize for the error.
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