As Law360 Canada reported Nov. 3, the advisory board recommended to the prime minister only two Supreme Court of Canada candidates it considered qualified for appointment: then-Alberta Court of King’s Bench Chief Justice Moreau (who was appointed to the top court Nov. 6) and an unnamed candidate.
Notably, however, the Nov. 29 report of the “Independent Advisory Board for Supreme Court of Canada Judicial Appointments” which, in the name of public transparency and confidence in the appointment process, must report to the prime minister about its activities within one month of a Supreme Court appointment, fails to explain why it submitted just two qualified names to the government or to acknowledge that its mandate required it to provide three to five qualified names.
Prime Minister Justin Trudeau
However, since then Law360 Canada has twice asked MacLauchlan, the commissioner for federal judicial affairs Marc Giroux, and the federal government/Department of Justice (DOJ) questions about the board’s non-delivery of its mandate to supply the names of three to five qualified candidates to fill the western/northern vacancy left by the June 12, 2023, departure of former justice Russell Brown, including whether changes to the board’s mandate or to the Liberals’ Supreme Court’s appointment process are needed or under consideration. No answers responsive to these questions have emerged by press time.
The advisory board’s report, made public by the DOJ Dec. 14, is less forthcoming in some ways than MacLauchlan was when he outlined the advisory board’s activities to the Commons justice committee last month. The board’s chair told MPs, for example, that after the 13 applications were screened, the board interviewed four candidates — which culminated in “a short list of two candidates of exceptional qualifications and experience.” The board’s report does not mention how many applicants were interviewed.
(The number of applications to fill the latest Supreme Court vacancy was on par with recent vacancies filled by Ontario’s Justice Michelle O’Bonsawin (12 applicants) in 2022 and Alberta’s Justice Sheilah Martin (14 applications) in 2017.)
The advisory board’s report discloses an almost even split between male and female applicants: seven men and six women. Nine of 13 applicants said their preferred official language of communication was English; one said French; and three jurists indicated no preference.
Two applicants self-identified as Indigenous and one self-identified as “racialized.”
Letters were sent out on the advisory board’s behalf last June to 73 Canadian legal and judicial organizations, asking them to use their networks and knowledge of the judiciary and legal community in their jurisdictions to identify qualified candidates and encourage possible candidates to submit an application. Letters were also sent to the chief justices of the courts of the western/northern provinces and territories and of the Federal Court of Appeal and Federal Court.
Although Supreme Court appointment advisory boards are expressly authorized to make “recommendations for improvements to the process,” this board chose not to talk about any reform to its mandate or address any stumbling blocks it might have experienced when faced with the prime minister’s instruction to supply him with the names of at least three, and up to five, qualified and functionally bilingual candidates for the Supreme Court of Canada.
The advisory board’s five recommendations for improvements to the process included:
- Thought should be given to amending the board’s terms of reference in order to allow outreach to begin prior to the launch of a selection process. “A broader conversation with people in the profession about what is required to be on the court, prior to any future vacancies, might result in wider ranging and diverse applications,” the board advised.
- In carrying out its mandate, the advisory board was governed by criteria which included that the Supreme Court reflect the diversity of members of Canadian society, including gender-balance, Indigenous peoples, persons with disabilities and members of linguistic, ethnic and other minority communities, including those whose members’ gender identity or sexual orientation differs from that of the majority. “The Advisory Board strongly recommends that these continue to be operative principles for future selection boards.”
- Members of the advisory board should be appointed earlier and as soon as possible in order to avoid any delays in appointments to the Supreme Court of Canada; in future, the board’s chair should be known or announced at the beginning of the process. For the latest vacancy, the chair’s appointment was announced, and the board’s members were appointed, Aug. 11, 2023, three weeks after applications closed. “It conducted its work efficiently, submitting its short-list report to the Prime Minister four weeks after its appointment,” the board said.
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