Supreme Court of Canada Vacancy Application Deadline Passes, Applicants to Be Shortlisted

The Supreme Court of Canada is seen in Ottawa on June 17, 2021. The Canadian Press/Justin Tang

Applications for the justice of the Supreme Court of Canada vacancy closed on July 21, and an advisory board will now narrow down to a shortlist of applicants for the prime minister’s consideration.

The pool has already been narrowed by directives from the Liberal government to ensure the applicant is not only a high-calibre jurist from either Western or Northern Canada, but also “functionally bilingual, and representative of the diversity of our country.”

Prime Minister Justin Trudeau is the first to make bilingualism a requirement.

University of Alberta law professor Gerard Kennedy contributed his opinion on who might qualify. He told The Epoch Times that a number of potential candidates highlighted by Canadian legal publication Law360 are “plausible.”

The appointment process is highly confidential, so it is unknown who has applied for the position.

The vacancy opened in the court after Justice Russell Brown resigned in June.

Jurists Who May Qualify

Law360 identified three jurists in Manitoba who may qualify:

Chief justice of Manitoba’s Court of Appeal, Marianne Rivoalen, is an ex-civil litigator who was senior counsel with Justice Canada’s aboriginal law services group. Justice Gerald Heckman was a University of Manitoba law professor, teaching administrative, constitutional, and language rights law until he was appointed to the Federal Court of Appeal in June. And Manitoba King’s Bench Chief Justice Glenn Joyal has an expertise in criminal and constitutional law. Joyal applied in 2017 to fill a Supreme Court vacancy, a fact leaked to the media at the time.

In Saskatchewan, Court of Appeal Justice Georgina Jackson, an expert on judicial ethics, is one possible candidate, Law360 said. University of Saskatchewan College of Law professor Dwight Newman could also be a contender. He has been the Canada Research Chair in Indigenous Rights in Constitutional and International Law for 10 years.

In Alberta, there’s Alberta Court of King’s Bench Chief Justice Mary Moreau, whom Trudeau appointed as the first woman to lead that court in 2017. The Trudeau government also promoted Alberta Court of Appeal Justice Jane Fagnan and Alberta Court of Appeal Justice April Grosse on April 23, and Law360 says they may be candidates for Canada’s top court.

Another possibility is Justice Patrice Abrioux, whom the Trudeau government promoted to the B.C. Court of Appeal in 2019. He previously presided over B.C. Supreme Court proceedings in French. B.C. Court of Appeal Justices Elizabeth Bennett and Harvey Groberman have both long been at the appeal court and have also presided over proceedings in French.

Mr. Groberman also has ties to Yukon, having been appointed to the territory’s Supreme Court in 2005 and its Court of Appeal in 2008.

The Appointment Process

Some have criticized the government’s move to limit the applicants to those who are functionally bilingual. Gwendolyn Landolt, who has had a long legal career including as a Crown prosecutor and a lawyer for the federal government, told The Epoch Times she thinks the appointments should be on legal merit alone.

“What does French-speaking have to do with it? They’ve always had interpreters [in the court],” Ms. Landolt said. She said the language requirements, as well as a preference for female applicants or those who represent diversity in other ways, may exclude some jurists of high caliber and integrity.

Now that applications have been submitted to replace Mr. Brown, an advisory board will go through them and create a shortlist of three to five candidates for the prime minister’s consideration. The list is non-binding, though Trudeau has always chosen from it for past appointments.

Some members of the advisory board are nominated by professional organizations, such as the Canadian Bar Association, some by the minister of justice. The board is to include one member nominated by the Indigenous Bar Association.

When the government opened applications for the Supreme Court vacancy on June 20, it said an advisory board would be announced in the “coming weeks.” Previous advisory board chairs have included former premier of Prince Edward Island Wade MacLauchlan and former prime minister Kim Campbell.