Choosing a new Supreme Court judge

December 8, 2017 Lisa Stam, Spring Law Government Budgets, Throne Speeches and Plans, Human Resources, Human Rights

With the looming retirement of a Supreme Court Judge, a new judge has been put forward as the recommended candidate to replace her.

Last week a new judge was put forward as the recommended candidate to replace our current Supreme Court of Canada Chief Justice Beverley McLachlin, who will be retiring this month. The candidate, Alberta Court of Appeal Justice Sheilah Martin, would fill a seat that some had expected to go to an Indigenous judge, or a judge for British Columbia. However, the appointment would maintain the current gender balance on the court.

Chief Justice McLachlin, our first female Chief, has been the Chief Justice for 17 years, a judge for 36 years and on the Supreme Court for 28. In Canada judges have a mandatory retirement age of 75 years. The Chief Justice will be retiring 9 months before she hits that mark. Though she may continue to sign off on outstanding judgements for another 6 months post retirement, her last day at the office will be December 15.

How we appoint judges to the Supreme Court

In Canada we appoint, as opposed to elect, our judges. This is true at all levels of our court system, though processes vary. Traditionally, judges of the Supreme Court are appointed by the Governor General-in-Council, based on the advice of the Queen’s Privy Council for Canada. This “advice” is generally exclusively garnered through consultation with the Prime Minister. The provinces and parliament have historically had no formal role in the appointment of a judge to the Supreme Court.

However, Prime Minister Trudeau has shaken things up by changing the process by which appointments are made. Instead of being selected, anyone eligible can now apply to the job. An independent and nonpartisan advisory board identifies suitable candidates. The identity of the members of the advisory board, the assessment criteria and process used with applicants is available to the public.

Once the advisory board compiles a shortlist of candidates, parliament gets involved. The Minister of Justice consults the Chief Justice, provincial and territorial attorneys-general, members of the House’s justice and human rights committee, the Senate’s legal and constitutional affairs committee and the Opposition justice critics. Once a nominee is selected, as Justice Martin has been, a special justice and human rights committee hearing is held where the Minister of Justice and the chair of the advisory board will explain the reasons behind the nomination. In the case of Justice Martin, this hearing took place December 4th. Members of the house then have an opportunity to participate in a Q & A session with the nominee, which Justice Martin participated in December 5th.

Justice Malcolm Rowe, from Newfoundland, was appointed under the new process to fill the vacancy left by Justice Thomas Cromwell in October 2016. You can check out his application questionnaire here.

However, it is noteworthy that this new more transparent process is not law so nothing legally compels the Prime Minister to follow it.

Eligibility

In order to be eligible for appointment, or to apply for the top job, candidates must be current judges of the Superior Court system or have been members of the legal bar (lawyers) for at least ten years. They must also be bilingual.

Regional representation

There are nine seats on the Supreme Court. Three are reserved for judges from Quebec. This is the case despite the fact that only 24% of Canada’s population resides in Quebec, but is considered justified due to Quebec’s very different legal system.

Of the remaining six seats, three are to be filled by judges from Ontario, two from western provinces, divided generally as one from British Columbia and then a rotation between the other provinces and one judge from the Atlantic provinces typically Nova Scotia or New Brunswick. If Justice Martin is appointed there will be two judges from the province of Alberta on the court.

While consideration is given to regional representation, there have been no formal changes to ensure equitable representation with respect to race or gender. Presently all justices of the Supreme Court are white. Four are women and five are men. Critics were generally surprised by Trudeau’s appointment of Justice Rowe, a white man, in 2016 and, as noted, it was expected that he may have appointed an Indigenous judge next.

Who will be the next Chief Justice?

While Justice Martin would take Chief Justice McLachlin’s place, she would not replace her as Chief Justice. Traditionally, the Chief Justice post is filled alternately by the most senior anglophone and francophone member of the court. If Prime Minister Trudeau decides to follow convention, the Chief Justice post would go to a Harper appointee, Justice Richard Wagner who is presently 60 years old.

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Lisa Stam, Spring Law

Founder of Spring Law, Employment and Labour Lawyer at Spring Law

Lisa Stam is founder of Spring Law, a virtual law firm advising exclusively on workplace legal issues for employers and executives. She practices all aspects of employment, labour, privacy, and human rights law, with a particular interest in legal issues arising from technology in the workplace. Lisa’s practice includes a wide range of entrepreneurs in the tech space, as well as global companies with smaller operations in Canada. In addition to the day to day workplace issues from hiring to firing, Lisa frequently blogs and speaks on both the impact, risks and opportunities of social media and technology issues in (and out of) the workplace, as well as the novel ways in which changing expectations of privacy continues to evolve employment law. Read more here.