The big shifts about to hit the Supreme Court of Canada

The government is widely expected to announce a new Supreme Court appointee on Nov. 29, a decision that will also trigger another big shift: the announcement of the next chief justice. After 17 years serving as the chief justice—the longest term in history—Beverley McLachlin is retiring. Her replacement could also come as early as Wednesday, though more likely that will be revealed in the near future.

This will be the second court appointment for Justin Trudeau, who must balance conventions determining regional, linguistic and gender with his own views on what the court needs in 2017. For example, there has been a lot of momentum behind a movement to appoint the first Indigenous Supreme Court judge. To find out what goes into this selection, Evan Solomon spoke to Vanessa MacDonnell, an associate professor at the University of Ottawa in the Faculty of Law.

Q: What factors does the PM have to weigh when he thinks about choosing a new chief justice to replace Beverley McLachlin? Why is this such an important and consequential decision for Canadians?

A: The chief justice sets the direction of the court in ways large and small. She is the face of the court. Internally, she may nudge judges toward consensus, as Chief Justice McLachlin has done, or create space for dissent. She’s the one who decides who writes the decision after a case has been heard. And we know that who’s writing matters. The chief justice allocates the workload. Whoever writes the decision has a significant influence on how the law is set down and how a judgment is structured. McLachlin has written a lot of the big decisions in the past 10 years on some very significant cases. Of course, all Supreme Court decisions are significant, but some of the decisions with broader implications have been written by the chief justice, which contributes to her legacy and her imprint on the court. So the fact that a new chief justice might spread the work around more or write his or her own decisions may look merely like an administrative issue, but it actually contributes to the shape of the law.

In recent years, the chief justice has also had to navigate complex political terrain and safeguard the interests of the court as an institution. This requires political deftness and judgement. It is a hugely important job.

Q:  The choice for the Prime Minister has conventions to balance, such as French and English rotating back and forth. Seniority is also an issue. How do you look at the choice between justices Rosalie Abella, who has seniority, and Richard Wagner, who is francophone? 

A: Wagner is a francophone justice from Quebec. Justice Abella is an anglophone justice from Ontario with three years left on the bench before her retirement. Each justice also has their own unique disposition, management style, interpersonal approach and the like.

From an institutional standpoint, it’s not ideal to appoint someone chief justice who will only be there for three years, like Abella. It can take a while to settle into that role. There is a lot of benefit to having someone settle in and grow in the job. While seniority matters, it is not the most important issue. There are many factors at play. The ability to lead, to foster collegiality among the nine people is very key. That can happen in different ways. The current chief is a real consensus builder, but there are other ways to do that. A new chief could, for example, want to highlight the need for more dissenting voices.

I suspect in the end that the government will be reluctant not to appoint a francophone. As an example, before Justice Malcolm Rowe was appointed from Newfoundland and Labrador—the Atlantic Canada appointee—the government suggested that it might be willing to depart from the convention of appointing someone from the same region as the retiring judge. That didn’t go well, and Trudeau later backed off that suggestion. So factors like region and language are big issues in this country. I suspect that the government learned something from that experience.

So that means it will likely be Wagner. Still, there are concerns with him. Wagner’s handling of the intervenor issue in the Trinity Western case is worth noting. He initially failed to grant leave to intervene to any LGBT groups, leading the chief justice to issue an extraordinary press release amending the order to allow all intervenors to intervene. That was followed by Wagner speaking on the record to a journalist at the Globe and Mail about the decision. This raises some concerns for me about how he might handle difficult issues on the court.

Q: Can you outline why issues of language, geography, gender and even age are so important?

A: These things are important because the court is a national institution. The composition of the court and the identity of the chief justice should reflect that fact, and reflect the country’s diversity.

Q: Some believe the PM will and should appoint Canada’s first Indigenous justice. Why is this so important? Who is on that short list?

A: Having an Indigenous justice on the Supreme Court of Canada is critically important, for a few reasons. The Supreme Court decides cases that have a significant impact on Indigenous communities. The fact that these cases are being decided by a court with no Indigenous judges impacts negatively on the legitimacy of the court and its work.

It’s important because the Supreme Court should reflect the diversity of Canada. And it’s important for the project of reconciliation. If Canada is going to begin to address the persistent effects of colonialism in this country, our institutions will have to change. That means thinking about who’s on the court.

There’s been some suggestion that Professor John Borrows of the University of Victoria, a nationally and internationally recognized scholar of Indigenous legal traditions, and Justice Mary Ellen Turpel-Lafond, a provincial court judge in Saskatchewan and the former representative for Children and Youth in British Columbia, may be in the running.

Q: Finally, has the process of selecting a justice changed how decisions are made, and why certain people are chosen?

A: In 2016, the Trudeau government introduced a new process for selecting federally appointed judges, including justices of the Supreme Court. An independent advisory board reviews applications based on a set of predetermined criteria and provides a short list to the Prime Minister. The goal is to remove some of the mystique surrounding the process. Any qualified candidate can apply. This ideally widens the pool of candidates considered beyond the usual suspects.

On the whole, the federally appointed judges who have been selected through this process are a more heterogeneous group than their predecessors. It will take some time to figure out to what extent this is the product of the process and to what extent it is simply a function of having a more progressive government in power.