PM’s pick of CJ Moreau for top court means SCC poised to have a female majority for the first time

By Cristin Schmitz

Last Updated: Friday, October 27, 2023 @ 12:24 PM

Law360 Canada (October 26, 2023, 11:25 AM EDT) -- The Supreme Court of Canada could soon have a majority of women judges for the first time since its creation in 1875, following the historic nomination of Alberta Court of King’s Bench Chief Justice Mary Moreau to fill the top court’s Western/Northern seat vacated last June by Justice Russell Brown.

“I am confident that her impressive judicial career and dedication to fairness and excellence will make Chief Justice Moreau an invaluable addition,” Prime Minister Justin Trudeau said Oct. 26 when nominating the fluently bilingual trial judge to the nine-member Supreme Court — which currently comprises four female judges and four male judges.

Other countries have, or have had, a majority of women judges on their highest courts, including Australia, New Zealand and Malaysia, however Chief Justice Moreau’s appointment would break new ground for women in Canada.

Prime Minister Justin Trudeau

Prime Minister Justin Trudeau

She was the first woman and the first francophone appointed as chief justice of the Alberta Court of Queen’s Bench (now King’s Bench), the Canadian Bar Association said in a statement reacting to Chief Justice Moreau’s nomination. “For the first time in its 148-year history, and 41 years after the Honourable Bertha Wilson became the first woman appointed to the Supreme Court of Canada, a majority of women will be sitting on the bench of the highest court in our judicial system,” CBA president John Stefaniuk said. “Justice Moreau’s nomination represents an important step forward for gender equality. The CBA considers that Justice Moreau will be a great asset to the Supreme Court of Canada, and we look forward to working with her.”

The announcement from the Prime Minister’s Office (PMO) said MPs from the House of Commons standing committee on justice and human rights will participate in a special committee hearing Nov. 2 where Justice Minister Arif Virani will explain why Chief Justice Moreau was nominated. The justice committee will also hear from Wade MacLauchlan, chair of “the Independent Advisory Board for Supreme Court of Canada Judicial Appointments,” who will outline the process the non-partisan board followed to create the confidential short list of qualified candidates it recently provided to the prime minister.

“A question-and-answer session will then be held with the nominee, as part of the Government of Canada’s commitment to openness, transparency, and accountability,” the PMO said. As was the case for previous Supreme Court nominations by Trudeau, a public Q&A session will be attended by members of the House of Commons justice committee and members of the Senate’s legal and constitutional affairs committee. A member of the Green Party of Canada will also attend. The Q&A session will be moderated by Université de Moncton law dean Érik Labelle Eastaugh.

CBA president John Stefaniuk

CBA president John Stefaniuk

According to her bio, before earning her bachelor of laws from the University of Alberta in 1979, Moreau studied at the Faculté Saint-Jean at that university. She completed her law degree while taking part in the common law/civil law exchange program at the Université de Sherbrooke in 1977.

In 2019, Chief Justice Moreau received an honorary doctorate from her alma mater and in 2023 was granted a Lifetime Achievement Award from Women in Law Leadership.

Chief Justice Moreau was called to the Alberta bar in 1980. She primarily practised criminal law – a major part of the top court’s docket — as well as constitutional law and civil litigation, which also make up a substantial part of the Supreme Court’s work.

According to her bio, she “litigated numerous landmark cases involving minority language rights and the Canadian Charter.”

The Liberal government requires that all jurists it nominates to the Supreme Court must be functionally bilingual in both official languages. A co-founder of the Association des juristes d’expression française de l’Alberta, Chief Justice Moreau certainly qualifies.

She was appointed to the Court of King’s Bench of Alberta in 1994 and to the Supreme Court of the Northwest Territories in 2005. In 2017, she was appointed chief justice of the busy Court of King’s Bench of Alberta. The chief justice is known for her contributions to education, administration and strategic planning, according to a backgrounder Trudeau provided when he appointed her as the first woman to lead that trial court.

She has been actively involved in judicial education, administration and ethics and co-chaired the National Judicial Institute’s annual spring national criminal law conference for six years. She was president of the Canadian Superior Courts Judges Association from 2011 to 2012.

She currently chairs the Judicial Advisory Committee for Military Judge Appointments and also chairs the Commissioner for Federal Judicial Affairs’ Judicial Advisory Committee on International Engagement. Chief Justice Moreau has served on the Canadian Judicial Council’s executive committee since 2021 and its judicial conduct committee since 2020. She also chairs the federal judicial council’s technology subcommittee.

As well, the chief justice is a member of the “Action Committee on Modernizing Court Operations,” which is co-chaired by Virani and Chief Justice of Canada Richard Wagner.

The prime minister is expected to appoint the judge to the vacancy, soon after she appears for questioning on Parliament Hill.

Chief Justice Moreau’s age or any personal details were notably absent from the short bio attached to the PMO’s press release, notwithstanding that federally appointed judges face mandatory retirement at age 75. At press time, the government had not answered Law360 Canada’s query about when exactly the chief justice would reach mandatory retirement.

Those who want to hear from the chief justice, in her own words, can read the extensive federal questionnaire she was required to fill out, which sheds light on her professional history and views.

She also disclosed some past leisure or pro bono activities, including acting in “The Government Inspector” in 2013 and serving on the board of directors of Players deNovo, which promotes local theatre in Edmonton.

The chief justice has been learning Italian since 2012. As a student, she worked summers as a journalist and news bulletin editor at Radio-Canada in Edmonton. She coached children’s basketball and served on preschool and elementary schools’ parents’ committees.

She won the constitutional law prize at the University of Alberta in 1978 and articled with Edmonton’s Shtabsky and Co. from 1979 to 1980.

Prior to her 1994 appointment as a puisne judge with Alberta’s Court of Queen’s Bench she was a partner with Rand Moreau from 1989.

As a lawyer, Chief Justice Moreau litigated several important language rights cases on behalf of francophone clients in Alberta, including successfully representing Luc Paquette at court levels up to the Supreme Court of Canada between 1984 and 1990 on an application for a trial by judge and jury in French in Alberta. The top court’s decision recognized an alternative avenue under Part XVIII of the Criminal Code for exercising language rights in Alberta’s criminal courts.

And in Mahe v. Alberta, [1990] 1 S.C.R. 342, she represented the appellants in a landmark s. 23 Charter language rights case that provided a roadmap for the establishment of francophone school boards in Alberta.

As a trial judge, Chief Justice Moreau’s decisions include Siegel v. Siegel Estate [1995] A.J. No. 1158, which dealt with a widow’s application under the province’s Family Relief Act. “I adopted an analysis based on the principles of the Divorce Act, the Matrimonial Property Act (Alta) and the legal principles governing trusts, as well as the moral obligations of testators, to determine whether the will’s provisions in favour of the testator’s widow were adequate, just and equitable in the circumstances, in light of current societal norms and values,” Chief Justice Moreau wrote in her questionnaire, when she was asked to describe one of the five “most significant cases or matters” she had dealt with as a judge or as a lawyer.

“This sort of analysis, which establishes symmetry between the rights and obligations of the spouses while they are still alive and their rights and obligations after one of them dies, provides more clarity and certainty when determining claims of this sort against a spouse’s estate,” explained the chief justice, whose history shows engagement with estates and family law, in addition to criminal and constitutional law. “In adopting this modern approach, I also rejected the interpretation according to which what is considered adequate, just and equitable is limited to the spouse’s bare necessities of existence,” Chief Justice Moreau wrote.

“When I look back at my careers to date as a lawyer, a puisne judge and chief justice, I believe that my greatest contribution to the law and the pursuit of justice in Canada was to improve access to justice in both official languages in government institutions and the courts,” she said.

Asked how her experience has given her “insight into the variety and diversity of Canadians and their unique perspectives,” Chief Justice Moreau wrote that “aspects of my personal and professional lives have given me greater insight into the diversity of Canadians and their unique perspectives, and into the importance of diversity in respect of access to justice: as a member of a minority language and cultural group; in a professional world where men are in the majority; as a judge involved in international development programs; as a trial judge who has worked in all fields of law; and as chief justice, responsible for championing diversity, inclusion and access to justice in my court.”

The judge said French-Canadian music, literature, traditional songs and festivals enriched her life growing up in western Canada. “I learned the importance of my language in giving a voice to my culture, and of my culture in instilling in me a sense of belonging and identity,” she wrote. “I also experienced the challenges that come with belonging to a minority group in a majority anglophone province.”

At law school in Alberta, women accounted for barely a quarter of her class, she noted. “They were also in the minority in criminal law practice and held only about a quarter of the positions as judges of the Court of Queen’s Bench. I had to constantly prove my professional abilities to be accepted in this field. Today, we have almost reached parity. The elimination of barriers and greater openness to women’s perspectives in the legal profession, as lawyers and judges alike, have had a significant impact on access to the profession and on access to justice for women, so that they can see themselves reflected in the courts they serve.”

Working as a judicial instructor teaching ethics and communication to judges in Morocco, Ukraine and Mongolia, “I came to realize that Canada is internationally known for its respect for equality and human dignity,” she said. “I was moved by the struggle in a number of countries to create a justice system accessible to all, especially to members of vulnerable and marginalized groups.”

Having been a trial judge for 23 years before becoming a chief justice, “I developed an appreciation of the challenges related to access to justice, especially in matrimonial litigation, where language or cultural barriers arise in a setting that is often emotionally charged,” she said. “Training programs offered by the National Judicial Institute on social context and my own experience in the courtroom have made me aware of the need to respect and value diverse perspectives. As a judge sitting throughout the province, from High Level in the north to Medicine Hat in the south, I learned that one must not only identify, but also respect, differences in culture and attitudes between urban centres and rural areas, and that it is critical that the institutions of the justice system be present and visible in rural communities. My experience outside Alberta as a deputy judge in the Northwest Territories and in Yukon has also shown me the enormous challenges faced by Indigenous communities to preserve their cultures and languages.”

Chief Justice Moreau said that she recognizes “the importance of diversity and inclusion. A chief justice has a duty to foster access to justice and respect for diversity among all members of the court. The Diversity, Inclusion and Access Committee, an internal committee of the Court, is a group of judges and lawyers who are responsible for encouraging their colleagues to participate in various projects and events to increase their cultural competency. In the last few years, we have organized training sessions on the importance of including the 2SLGBTQI+ community to educate judges on inherent barriers to access for that community, as well as the importance of respecting gender identity and the choices of preferences of each person.”

She said her court recently adopted “a gender-neutral approach to addressing the judges of our court. Eagle feathers are now available in each of the court’s 13 court locations as an alternative for Indigenous people to use in taking oaths. There are courtrooms in the Edmonton and Calgary courthouses that are designed for smudging ceremonies, and plans are under way to make this available at all court locations in Alberta.”

Chief Justice Moreau said that “in a court where Indigenous accused are overrepresented, it is important that judges have a sound knowledge of s. 718.2 of the Criminal Code, the principles in Gladue and the recommendations of the Truth and Reconciliation Commission. These topics are included in the training programs for Court of King’s Bench judges. I believe that my personal and work experience has helped me to understand the importance of diversity and inclusion in Canada’s justice system. All Canadians should be able to see themselves reflected in their justice system in order to have faith in it.”

Asked to describe the role of a judge in a constitutional democracy, the chief justice said (in part) “the powers of judges under ss. 24(1), 24(2) and 52(1) of the Constitution Act, 1982 prevent government agencies from violating human rights, which are central to democracies. Judges exercise their decision-making power in accordance with constitutional norms, principles of statutory interpretation and the decisions of the Supreme Court of Canada and courts of appeal,” she wrote. “Given the important role of judges in democracies, constant changes in society and the dynamic nature of the law, judges have a responsibility to hone their legal and social context knowledge to ensure respect, fairness and dignity for all members of society and to clearly and definitively eliminate myths and stereotypes.”

Chief Justice Moreau said the Supreme Court’s development of jurisprudence on s. 276 of the Criminal Code (R v. Barton, 2019 SCC 33; R v. Goldfinch, 2019 SCC 38) “is an example of how the development of principles is influenced by the social norms of equality and fundamental justice guaranteed by the Canadian Charter of Rights and Freedoms. These principles assist trial judges in determining the fair and appropriate scope of cross-examination of complainants with regard to sexual acts other than those at the origin of the charge. The Supreme Court confirmed the importance of balance between the accused’s right to a fair trial and a full answer and defence and the complainant’s right to privacy and not to be deprived by the criminal process of their human dignity. This is accomplished, in part, by limiting the scope of investigations into their sex life when they fall outside the allegations underlying the charge. By clarifying the scope of cross-examination, the Supreme Court developed principles that trial judges can use to render justice in individual cases. This analytical framework does not have the effect of depriving the accused of their right to a fair trial. It takes into account all of the people involved in the process and societal norms, thereby limiting the cross-examination to evidence that is truly relevant and on which we rely with a purpose other than to support inferences based on myths or stereotypes.”

(Correction: A previous headline and version of this story incorrectly indicated that the expected appointment by the prime minister of his nominee to the Supreme Court of Canada, Alberta Court of King’s Bench Chief Justice Mary Moreau, might break new ground for women globally; our research reveals the existence of female-majority national apex courts in other countries.)

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