Canada: Our Next Supreme Court Of Canada Judge

Last Updated: August 4 2017
Article by Jeff Beedell

Most Read Contributor in Canada, October 2018

You have until 23:59 pm PDT on September 15, 2017 to apply.

"The Supreme Court of Canada is recognized around the world as a strong, independent judicial institution. This strength includes regional representation. The process we are opening up today will recruit potential candidates from Western Canada and Northern Canada and follow the tradition of appointing only the most exceptional and impressive individuals to the court."
– Rt. Hon. Justin Trudeau, Prime Minister of Canada, July 14, 2017

So, the door is open if you are from west of Ontario or from the three territories, with the custom of regional representation firmly entrenched after some uncertainty before Justice Rowe's appointment in 2016. The new process that was introduced last August will be followed once again. Some may wonder what happened to the tradition of the two Judges coming from Western Canada - one from BC and the other from one of the Prairie provinces. 

This process will engage an independent and non-partisan Advisory Board that will be given the task of identifying whether you have the right stuff to be a jurist of the highest caliber, functionally bilingual, and representative of the diversity of Canada. The Advisory Board will submit a short list of three to five candidates for consideration by the Prime Minister who we expect will announce his choice before Chief Justice Beverly McLachlin retires on December 15, 2017.

If you make the shortlist, the Minister of Justice will consult with the Chief Justice of Canada, relevant provincial and territorial attorneys general, relevant Cabinet ministers, opposition Justice Critics, as well as members of both the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs.

Based on these consultations and the Minister of Justice's recommendation, the Prime Minister will make his choice and publicly announce your name. The Minister of Justice and the Chairperson of the Advisory Board will then appear before the House of Commons Standing Committee on Justice and Human Rights to explain why you were selected.

For transparency, members of the House of Commons Standing Committee on Justice and Human Rights, the Standing Senate Committee on Legal and Constitutional Affairs, and a representative from each party with seats in the House, will be invited to take part in a Q&A with you. The meeting will be moderated by an esteemed law professor and will provide an opportunity for Parliamentarians and members of the public to get better acquainted with you as the next justice of the Supreme Court of Canada.

You can satisfy the geographical requirement by reference to your bar membership, judicial appointment, or other relationship with Western Canada (British Columbia, Alberta, Saskatchewan and Manitoba) and Northern Canada (Yukon, Northwest Territories and Nunavut). The first two proofs of geography are straightforward, the Reference re Supreme Court Act, ss. 5 and 6, 2014 SCC 21 decision and 2013 amendments to the Supreme Court Act having clarified the nuances of appointments from Quebec compared to the rest of Canada. Pursuant to s. 5 of the Act, for other than Quebec appointments any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least 10 years standing at a bar of a province". And, for greater certainty of appointments directly from the bar outside of Quebec, s. 5.1 states that "a person may be appointed a judge if, at any time, they were a barrister or advocate of at least 10 years standing at the bar of a province".

What is not addressed in the Act though is the meaning in the Prime Minister's statement of what "other relationship" with Western Canada or Northern Canada will satisfy the geographic requirement. Further, the statement says this "is the first time that the North is acknowledged in the custom of regional representation" which assumes without express definition in s. 2 of the Act, that "of a province" in s. 5 includes "of a territory". If you are currently a judge or lawyer in one of the territories or even one of those fine lawyers who travel north from Edmonton or other Western Canada cities to appear in Territorial Courts, this may be your time.

However, you really should have a close read of the Qualifications and Assessment Criteria before spending much time completing your application. These are daunting criteria. You will be weighed and measured both as an individual and how you would fit institutionally.  Individual criteria relate to your skills, experience and qualities.  Particulars of legal training, of non-legal professional experience and of community involvement will vary greatly from individual to individual, but must be objectively assessed to arrive at an evaluation of your potential for excellence in the judicial function.  There are also numerous personal qualities that will bear on whether you display the appropriate judicial temperament.  Institutional criteria will overlap to some degree with individual ones.  But as the Court's composition shifts over time, particular needs may emerge as more necessary to enable the Court to perform its general and final appellate function in all legal areas. As a result, part of the selection process will involve determining the ways and degree to which you embody the skills, experience and qualities that best meet the Court's needs at this particular moment in history. 

Finally, the Prime Minister's statement contains this last intriguing bullet: "From the nine justices of the Supreme Court then assembled, the Prime Minister will identify the jurist best placed to serve as the next Chief Justice of Canada." Is this a signal that the Prime Minister is open to also making his next judicial appointment to the Court our next Chief Justice? Certainly, it confirms that the next Chief Justice will be chosen from among the nine members of the Court and that this remains the sole prerogative of the Prime Minister, unencumbered by any formal consultation process and uncommitted to necessarily choosing one of the three civil law French Canadian judges from Quebec. 

Don't procrastinate - be sure to submit your application to the Office of the Commissioner for Federal Judicial Affairs Canada (OCFJA) by September 15 to become the ninth Judge of our Highest Court. For an outstanding precedent, you may wish to review The Honourable Malcolm Rowe's completed 2016 questionnaire

For more details please visit this link "Prime Minister opens the process to select the next justice of the Supreme Court of Canada, July 14, 2017" which also takes you to associated links for your Questionnaire, Authorization Form, and Background Check Consent Form.  Note that the OFCJA strongly recommends that candidates inform themselves of any e-mail size restrictions that are imposed by their Internet Service Providers (ex. Courthouse-provided e-mail system, Rogers, Bell, etc.) as this may cause technical difficulties in transmitting large documents to OCFJA.  Late or incomplete application packages may not be considered by the Advisory Board.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

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