Moreau CJ was on ‘short list’ of only 2 bilingual SCC candidates, despite feds mandating 3-5 names

By Cristin Schmitz

Law360 Canada (November 3, 2023, 3:48 PM EDT) -- The “short list” of candidates the independent advisory board on Supreme Court appointments handed the government last month had only two names on it as the advisory board did not identify enough “qualified and functionally bilingual” candidates to discharge the Liberal government’s mandate obliging the board to provide Prime Minister Justin Trudeau with “at least three to five names” of candidates to fill the Western/Northern vacancy for which Alberta Court of King’s Bench Chief Justice Mary Moreau was picked.

The surprising, but at first unremarked, revelation that the “Independent Advisory Board for Supreme Court of Canada Judicial Appointments” could only come up with two qualified and functionally bilingual candidates to recommend to the prime minister for the vacancy left by Justice Russell Brown’s departure last June was disclosed by the board’s chair, ex-law dean Wade MacLauchlan, to the Commons justice committee Nov. 2.

None of the MPs present at the meeting, at which Justice Minister Arif Virani also spoke, seemed to realize (and did not remark on) the fact that the board had thereby failed to discharge its official mandate from the prime minister to supply him with “at least” three to five qualified names — a fact which neither MacLauchlan or Virani mentioned in their remarks about the process used for the widely applauded nomination of Chief Justice Moreau, a fluently bilingual former criminal lawyer and language rights litigator with Francophone roots in Alberta.  

Justice Minister Arif Virani

Justice Minister Arif Virani

The dearth of Western candidates identified by the independent non-partisan advisory board — which not only screens applications for the top court but also functions in practice as a nominating body since the prime minister has said he intends to appoint from its short list (and has done so for all Supreme Court appointments) — raises questions again about the impact of the Liberal government’s contentious requirement that, in order to be eligible for appointment, jurists who apply for the Supreme Court of Canada must be functionally bilingual, i.e. “can read materials and understand oral argument without the need for translation or interpretation” in French and English, and ideally can also converse with counsel during oral argument and with their fellow judges in both official languages.

It has been remarked that requiring all applicants for the top court to be functionally bilingual significantly reduces the pool of eligible candidates in most regions, including for the two seats reserved for the West and North. No appellate judges from the region are known to have applied for the latest vacancy.

MacLauchlan said 13 jurists applied for the post, on par with the number of applicants for recent vacancies filled by Ontario’s Justice Michelle O’Bonsawin (12 applicants) in 2022 and Alberta’s Justice Sheilah Martin (14 applications) in 2017.

He revealed that the advisory board interviewed four applicants. “In the end, following much deliberation and discernment, the settled and unanimous judgment of the independent advisory board was that we should provide the prime minister with a short list of two candidates of exceptional qualifications and experience,” MacLauchlan said. “I’m pleased to confirm that Justice Mary Moreau has been selected from that short list.”

Alberta King’s Bench Chief Justice Mary Moreau

Alberta King’s Bench Chief Justice Mary Moreau

When asked by an MP whether the Liberals’ revised appointment process, which implemented the functional bilingualism requirement and advisory board, can be improved, and whether it “makes it possible to identify the best candidate who indicates an interest in becoming a Supreme Court justice,” Virani answered “with a candidate like Ms. Moreau, you can see the process ... produces excellent and exceptional results.”

It is not known whether the government may have modified the advisory board’s mandate that is published on the website of the commissioner for federal judicial affairs.

Colin McKinnon, an arbitrator, retired Ontario Superior Court judge and former president of the Ontario Superior Court Judges Association, did not dispute the quality of Trudeau’s pick for the apex court.

But he told Law360 Canada the advisory board’s failure, and apparent inability, to comply with its mandate to supply a short list of “at least” three to five functionally bilingual qualified candidates exposes a flawed appointment process, that not only does not achieve what was intended by the Liberal government, but also considerably restricts in most of the country the pool of potential highly qualified candidates for the Supreme Court.

“I know Mary,” McKinnon said of Chief Justice Moreau. “She’s an ideal choice for the Supreme Court of Canada. Solid as a rock. Her history speaks volumes as to her qualifications. But I have to highlight the fact that she is one of very few fully bilingual people from the West.”

McKinnon said the requirement that anglophones outside Quebec and New Brunswick must be functionally bilingual in French “operates unfairly against highly, highly qualified” potential candidates for the Supreme Court.

Colin McKinnon, former Superior Court judge

Colin McKinnon, former Superior Court judge

“I think that’s unfortunate, first of all, for the rule of law in Canada and for the Canadian public to be served by the best and brightest among them.”

He suggested “the fix is simple: have functional bilingualism in those provinces where they’re functionally bilingual, New Brunswick and Quebec, and then suspend the requirement for the other provinces.”

McKinnon argued functional bilingualism is not essential for the judges of the top court, given the availability to them of high-quality translation and simultaneous oral interpretation that has proven to be successful in the past. He pointed to the track records of such anglophone Supreme Court of Canada judges as Bora Laskin, Brian Dickson, Beverley McLachlin and others. “I see no failure of wise jurisprudence flowing from the fact that some of them were not functionally bilingual” when appointed.

However, the requirement of functional bilingualism for Supreme Court judges garners strong political support in Parliament, including from Liberals, NDP and Bloc Québécois. Within the bench and bar, the pros and cons of functional bilingualism as an eligibility requirement for the top court are hotly debated. 

Questions posed to the PMO and Virani's office by Law360 Canada, about the Supreme Court’s appointment process and the advisory board's failure to discharge its mandate to supply a short list of at least three to five names, were not answered by press time, including:
  • Why did the advisory board and appointment process fail to come up with a short list of three to five qualified names, as per its mandate? What will the federal government do to fix this process?
  • Did the Prime Minister’s Office/government/justice minister go back to the board after its recommendation of two jurists and ask the board to consider or put forward other names as qualified? Did the board refuse?
  • If the federal government pressed the board to come up with other qualified names, does this cast doubt on the independence of the appointment process and on the board’s independence or efficacy?
  • Does the prime minister think that the board’s inability to deliver on its mandate casts any doubt on the efficacy of the prime minister’s Supreme Court of Canada appointment process, and the functional bilingualism requirement?
  • Is the prime minister concerned that his nomination/appointment could be subject to legal or other challenge or controversy because of a flawed appointment process?
  • Will the government reconsider the functional bilingualism eligibility requirement for Supreme Court of Canada judges or does it remain committed to keeping that eligibility requirement?

MacLauchlan did not answer a number of substantive questions Law360 Canada asked about what happened in the appointment process, including why the board did not discharge its mandate of recommending at least three to five names and did the PMO/government/justice minister go back to the board after its initial recommendation of two jurists and ask the board to consider, or put forward, other names as qualified? Did the government suggest names? Did the board refuse? 
On MacLauchlan’s behalf, the office of the commissioner for federal judicial affairs responded (in part) that the board “provided the prime minister with the names of two candidates who were so exceptional, who exemplify all of the professional and personal qualities of an appointee to the Supreme Court of Canada, and whose experience and expertise meet all of the court’s institutional needs. The short list provided to the Prime Minister resulted in the appointment of a remarkable candidate whose skills and abilities are unanimously recognized and who is fully bilingual.”

If you have any information, story ideas or news tips for Law360 Canada, please contact Cristin Schmitz at call 613-820-2794.