Independent Advisory Board for Supreme Court of Canada Judicial Appointments - Report on 2022 Process

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September 22, 2022

The Right Honourable Justin Trudeau, P.C., M.P.
Prime Minister of Canada
80 Wellington Street
Ottawa, Ontario
K1A 0A2

Dear Prime Minister:

Pursuant to our Terms of Reference, the Independent Advisory Board for Supreme Court of Canada Judicial Appointments submits this report on the 2022 process, including information on the mandate and the costs of the Advisory Board’s activities, statistics relating to the applications received, and recommendations for improvements to the process.

We thank you for the opportunity to serve on the Advisory Board and to participate in such an important process.

Respectfully,

The Honourable H. Wade MacLauchlan, C.M., O.P.E.I.
Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

Advisory Board members:

Paulette Senior
Konrad Sioui
Charlene Theodore
Jacqueline Horvat
The Honourable Louise Charron
Richard Jochelson
David Nahwegahbow

Table of Contents

  1. Introduction
  2. Establishment of the Advisory Board and the 2022 Process
  3. Meetings of the Advisory Board and Application Review Process
  4. Communications, Media and Public Affairs
  5. Consultation and Outreach
  6. Applications
  7. Costs
  8. Recommendations on Improvements to the Appointments Process and Work of the Advisory Board
  9. Confidentiality
  10. Conclusion
  11. Annex A: Advisory Board’s Terms of Reference
  12. Annex B: News Release, dated April 4, 2022, from the Office of the Prime Minister of Canada
  13. Annex C: News Release, dated May 16, 2022, from the Office of the Prime Minister of Canada
  14. Annex D: Biographical Notes – Members of the Advisory Board
  15. Annex E: Qualifications and Assessment Criteria
  16. Annex F: Functional Bilingualism and the Supreme Court of Canada Judicial Appointments Process
  17. Annex G: Outreach letter sent to Organizations
  18. Annex H: Example of letter sent to individuals identified by Organizations

1. Introduction

This report has been prepared by the Independent Advisory Board for Supreme Court of Canada Judicial Appointments (“Advisory Board” or “Board”) pursuant to paragraph 12 of the Terms of Reference (Annex A) which states:

Reporting

12 (1) Within one month after a judge is appointed, the Advisory Board must submit a report, in both official languages, to the Prime Minister that contains information on the carrying out of the mandate, the costs relating to the Advisory Board’s activities and the statistics relating to the applications received.

(2) The report may also contain recommendations for improvements to the process.

(3) The report must be made public.

This report covers all of the above enumerated stipulations, including information on the carrying out of the mandate, costs related to the Advisory Board’s activities, and statistics relating to applications received. At the end of the report is a series of recommendations for improvements to the process.

2. Establishment of the Advisory Board and the 2022 Process

The Advisory Board is an independent and non-partisan body whose mandate is to provide non-binding, merit-based recommendations to the Prime Minister on judicial appointments to the Supreme Court of Canada (SCC). The Advisory Board is convened at the discretion and request of the Prime Minister. The Advisory Board was previously called upon in 2016, 2017, 2019, and 2021 resulting in the appointments of Justices Malcolm Rowe, Sheilah Martin, Nicholas Kasirer, and Mahmud Jamal.

The composition of the Advisory Board is as follows:

  • Three members, at least two of whom are not advocates or barristers in a province or territory, nominated by the Minister of Justice;
  • A practising member in good standing of the bar of a province or territory, nominated by the Canadian Bar Association;
  • A practising member in good standing of the bar of a province or territory, nominated by the Federation of Law Societies of Canada;
  • A practising member in good standing of the bar of a province or territory nominated by the Indigenous Bar Association;
  • A retired superior court judge, nominated by the Canadian Judicial Council; and
  • A legal scholar, nominated by the Council of Canadian Law Deans.

The composition of the Advisory Board was amended for the 2022 process to include a practising member in good standing of the bar of a province or territory nominated by the Indigenous Bar Association.

The 2022 process was opened by the Prime Minister on April 4, 2022, in order to fill the seat on the SCC that would become vacant on September 1, 2022, with the retirement of the Honourable Michael J. Moldaver. Justice Moldaver was appointed to the Supreme Court of Canada from the Court of Appeal for Ontario. In recognition of the custom of regional representation, the process was open to all qualified candidates from Ontario. Candidates who wished to be considered were required to complete and submit applications by May 13, 2022. (Annex B)

On April 4, 2022, the Prime Minister also announced the appointment of the Honourable H. Wade MacLauchlan, former Premier of Prince Edward Island, as Chair of the Advisory Board. On May 16, 2022, the remaining members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments were announced. (Annex C)

The members of the Advisory Board are:

The Honourable H. Wade MacLauchlan, Chairperson, nominated by the Minister of Justice;

Paulette Senior, nominated by the Minister of Justice;

Konrad Sioui, nominated by the Minister of Justice;

Charlene Theodore, nominated by the Canadian Bar Association;

Jacqueline Horvat, nominated by the Federation of Law Societies of Canada;

The Honourable Louise Charron, nominated by the Canadian Judicial Council;

Richard Jochelson, nominated by the Council of Canadian Law Deans;

David Nahwegahbow, nominated by the Indigenous Bar Association.

Full biographical notes on the members of the Advisory Board can be found at Annex D.

The Prime Minister asked that the Advisory Board submit to him for his consideration, the names of at least three, but up to five, qualified and functionally bilingual candidates. Candidates were required to demonstrate that they satisfy the geographical requirement by reference to their bar membership, judicial appointment, or other relationship with Ontario.

As noted in the Terms of Reference, the Advisory Board is supported by the Office of the Commissioner for Federal Judicial Affairs Canada (FJA) and its Commissioner, or his or her delegate, acts as the ex officio secretary to the Advisory Board. FJA is also responsible for administering the application process, including assessing whether a candidate is functionally bilingual.

Detailed information concerning the process, the mandate of the Advisory Board and instructions on how to apply for appointment to the Supreme Court of Canada was made available on FJA’s website at www.fja-cmf.gc.ca immediately following the opening of the 2022 process.

3. Meetings of the Advisory Board and Application Review Process

Following their appointment, the members of the Advisory Board met via videoconference to discuss how they would approach their mandate. General administrative questions were discussed with the Commissioner and the ex officio secretary to the Board. The members decided to generally follow the approach taken in the previous processes. The Advisory Board meetings were held both virtually and in person. The Advisory Board decided that interviews with the candidates would be a useful way to fully assess their experience and qualifications. Also, given the success of their outreach efforts in the four previous processes, the Chairperson communicated with 51 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 them to submit an application.

The week following the application deadline, the applications were downloaded onto secure tablets for the Board members. All members performed an individual, thorough review of each application.

On May 19, 2022, the members of the Advisory Board met with the Chief Justice of Canada, pursuant to paragraph 8(e) of the Terms of Reference, to hear his views on the needs of the Supreme Court.

On May 19-20, the Advisory Board members assembled to discuss their individual evaluations of the applications. Based on their discussions as to who met the established criteria and qualifications, they decided which candidates they would like to interview as well as which references they would like to contact for these candidates. Over the following week, references were contacted for each candidate and the Advisory Board members debriefed each other on the reference calls they had made. References were asked the same set of questions, in order to be fair to candidates and to allow for comparability among them. The candidates to be interviewed were contacted and interview times were scheduled.

Interviews were held on May 31 and June 1. The candidates were engaged in a comprehensive discussion in response to a set series of questions designed to help the Advisory Board assess fully and fairly the candidates’ qualifications in relation to the assessment criteria which had been published with the application instructions. (Annex E).

Immediately following the interviews, FJA language experts conducted a second language proficiency assessment for each candidate, using assessment tools and rating grids to determine whether candidates met the functional bilingualism requirements for reading, listening and speaking. Results were communicated to the Advisory Board members. A description of the functional bilingualism process is included in Annex F.

The Advisory Board then deliberated to decide which candidates it would recommend to the Prime Minister, and to write its “shortlist” report to him. A list of three recommended candidates was provided. They were not prioritized but rather listed in alphabetical order. In accordance with the Terms of Reference, the report provided an assessment of how each of the recommended candidates meets the requirements of the Supreme Court Act and the extent to which they meet the assessment criteria established by the Prime Minister, as well as any additional reasons in support of their candidacy. Security checks were also conducted. The Report was submitted to the Prime Minister’s Office on June 23, 2022.

The Advisory Board was very pleased that the Prime Minister made the appointment from the list of candidates it submitted to him.

4. Communications, Media and Public Affairs

As indicated above, the process was opened on April 4, 2022, with a News Release from the Prime Minister. On the same day, the Prime Minister announced the Honourable H. Wade MacLauchlan, former Premier of Prince Edward Island, as Chair and member of the Advisory Board.

On the same date, FJA launched on its website information on the Advisory Board, its Terms of Reference, the application process, qualifications and assessment criteria, frequently asked questions, and relevant contact persons.

On May 16th, the remaining Advisory Board members were announced.

The creation of the Advisory Board and the launch of the application process generated some media interest (print, online, radio, television), much of it consisting in speculation and opinion on who should be appointed and some comments on the process. The nomination on August 19, 2022 of the Honourable Michelle O’Bonsawin elicited a great deal of media attention.

In the realm of public affairs and government engagement, the Chair of the Advisory Board appeared with the Minister of Justice before the House of Commons Standing Committee on Justice and Human Rights on August 24, 2022. In addition, a public question and answer session was held with the Prime Minister’s nominee on the same day. These appearances generated considerable media interest.

5. Consultation and Outreach

As discussed above, before beginning its deliberations, the Advisory Board met with the Chief Justice of Canada to obtain his views on current challenges and needs of the Supreme Court and its judges.

Early in the process, letters were sent to a wide range of 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 them to submit an application.

The list of organizations consulted is as follows:

  • Canadian Judicial Council
  • Federation of Law Societies of Canada
  • Canadian Bar Association
  • Council of Canadian Law Deans
  • Canadian Superior Courts Judges Association
  • Canadian Association of Provincial Court Judges
  • Canadian Council of Chief Judges
  • Indigenous Bar Association
  • Roundtable of Diversity Associations (RODA), whose participating organizations include:
    • Arab Canadian Lawyers Association
    • Association of Chinese Canadian Lawyers of Ontario
    • Canadian Association of Black Lawyers
    • Canadian Association of South Asian Lawyers
    • Canadian Hispanic Bar Association
    • Canadian Italian Advocates Organization
    • Canadian Muslim Lawyers Association
    • Federation of Asian Canadian Lawyers
    • Hellenic Canadian Lawyers Association
    • Iranian Canadian Legal Professionals
    • Korean Canadian Lawyers Association
    • Macedonian Canadian Lawyers Association
    • OBA Equality Committee
    • South Asian Bar Association
    • Toronto Lawyers Association
    • Women’s Law Association of Ontario
  • Ukrainian-Canadian Bar Association
  • Association of Justice Counsel
  • Avocats sans frontières Canada
  • Black Females Lawyer Network
  • Canadian Association of Crown Counsel
  • Canadian Association of Refugee Lawyers
  • Canadian Council of Criminal Defence Lawyers
  • Canadian Criminal Lawyers Association
  • Canadian Environmental Law Association
  • Canadian Prison Law Association
  • EcoJustice
  • Family Lawyers’ Association
  • Fédération des associations de juristes d’expression française de common law inc.
  • Federation of Ontario Law Associations
  • Law Society of Ontario
  • Lawyers for Representative Diversity
  • Legal Leaders for Diversity
  • Ontario Bar Association
  • Pro Bono Canada
  • The Advocates’ Society
  • Women’s Legal Education and Action Fund
  • Association of Ontario Judges
  • Ontario Superior Court Judges Association.
  • Canadian Bar Association – Equality Committee
  • Association des juristes d’expression française de l’Ontario
  • Canadian Association of Law Teachers

Given that the process was open to candidates from the province of Ontario, letters were also sent to the Chief Justices of the Ontario Court of Appeal, the Superior Court of Justice, the Ontario Court of Justice, as well as the Federal Court of Appeal and the Federal Court.

When the Advisory Board received communications suggesting that an individual be considered, its Chairperson wrote to these individuals asking them to consider the process and apply directly.

The letter sent to the organizations is included in Annex G. A sample of the letter sent to individuals is included in Annex H.

6. Applications

While the above-noted organizations were consulted and encouraged to share the call for applications with their memberships, individuals seeking appointment to the Supreme Court of Canada had to personally complete and submit an application form, which required them to provide their education and employment history as well as list all their publications, judgments and conference participation, as applicable. Candidates were also required to provide answers to a number of essay questions. This information was used to confirm their eligibility for appointment, as well as to help the Advisory Board assess merit, based on the published assessment criteria.

The application period was open from April 4, 2022 to May 13, 2022, a period of 6 weeks. Qualified candidates from Ontario were eligible to apply. The applications were received by email and processed by staff in the Office of the Commissioner.

The Committee received 12 applications.

In terms of information on diversity, generated from self-identification by applicants on their application forms, the following data was obtained from the 12 applications received:

*2 applicants did not indicate a preferred language of communication.

**Some applicants identified in more than one category.

7. Costs

While some expenses and operational costs are still being received and tabulated, it is estimated that the expenditures related to the Advisory Board for this appointment process will be approximately $225,000. Expenses relate to per diems for Advisory Board members, and costs incurred by FJA to support the Advisory Board, including costs related to supplementary salaries, professional services, translation, IT, telecommunications and supplies.

8. Recommendations on Improvements to the Appointments Process and Work of the Advisory Board

The Advisory Board offers the following recommendations:

  • Consultation and Outreach. 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. To this end, thought should be given to amending the Terms of Reference in order to allow outreach to begin prior to the launch of a selection process. 
  • 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 remain the operative principles for future selection boards.
  • Timeframe for Applications & Report to the Prime Minister. The Advisory Board benefited from approximately 6 weeks to complete its work, that is the time between the closing of the applications date and the submission of its short-list report to the Prime Minister. As indicated in previous processes, the Advisory Board reiterates that this period should not be reduced.
  • The Advisory Board notes that this process for recommending nominees has been used five times since 2016 and that the appointment of Justice O’Bonsawin to the Supreme Court is the eleventh in the last 11 years. The executive, administrative and technological assistance provided to the Advisory Board by the Office of the Commissioner for Federal Judicial Affairs was invaluable and considerable, and the Advisory Board is very grateful to the employees for the work they undertook.

9. Confidentiality

Pursuant to paragraph 11(1) of the Terms of Reference, each Advisory Board member signed an undertaking to respect the confidentiality of the process. Similarly, pursuant to paragraph 11(2) of the Terms of Reference, any “personal information provided to, and deliberations of, the Advisory Board are confidential and must be treated in a manner consistent with the provisions of the Privacy Act.” Furthermore, paragraph 11(3) articulates that Advisory Board members “must keep confidential any information brought before them in the performance of their functions.”

Therefore, the Advisory Board will not share any information pertaining to candidates.

10. Conclusion

The Advisory Board greatly appreciates the opportunity to serve the Prime Minister and all Canadians on such an important initiative. The process was illuminating and highlighted the exemplary jurists, academics and lawyers in Canada who applied for consideration under this process.

Annex A: Terms of Reference for the Advisory Board

Mandate

1 The Independent Advisory Board for Supreme Court of Canada Judicial Appointments (“Advisory Board”) is an independent and non-partisan body whose mandate is to provide non-binding, merit-based recommendations to the Prime Minister on judicial appointments to the Supreme Court of Canada

Composition of the Advisory Board

2 (1) Advisory Board members are appointed during pleasure under paragraph 127.1(1)(c) of the Public Service Employment Act as special advisers to the Prime Minister.

(2) The Advisory Board is to consist of

(a) three members, at least two of whom are not advocates or barristers in a province or territory, nominated by the Minister of Justice;

(b) a practising member in good standing of the bar of a province or territory, nominated by the Canadian Bar Association;

(c) a practising member in good standing of the bar of a province or territory, nominated by the Federation of Law Societies of Canada;

(d) a practising member in good standing of the bar of a province or territory, nominated by the Indigenous Bar Association;

(e) a retired superior court judge, nominated by the Canadian Judicial Council; and

(f) a legal scholar, nominated by the Council of Canadian Law Deans.

(3) The Governor in Council is to designate one of the members to be the Chairperson of the Advisory Board.

Length of Terms

3 (1) Advisory Board members are to be appointed for terms of up to five years, which terms may be renewed for one or more further terms.

(2) The Advisory Board is to be convened at the discretion and at the request of the Prime Minister.

Support

4 The Office of the Commissioner for Federal Judicial Affairs is to provide support to the Advisory Board and will be responsible for administering the application process.

5 The Commissioner for Federal Judicial Affairs, or his or her delegate, is to act as an ex officio secretary to the Advisory Board.

Recommendations

6 (1) In accordance with this mandate, the Advisory Board must submit to the Prime Minister for his or her consideration, within the time period specified by the Prime Minister on the convening of the Advisory Board, the names of at least three, but up to five, qualified and functionally bilingual candidates for each judicial vacancy for which the Advisory Board is convened.

(2) The Advisory Board must provide an assessment of how each of those candidates meets the requirements of the Supreme Court Act and the extent to which they meet the criteria established by the Prime Minister, and any additional reasons in support of their candidacy.

7 The Prime Minister may request that the Advisory Board provide names of additional qualified candidates who are functionally bilingual.

Recommendation Process

8 Advisory Board members must

(a) at all times, observe the highest standards of impartiality, integrity and objectivity in their consideration of all candidates;

(b) review applications received from candidates and actively seek out qualified candidates;

(c) meet as required to assess candidates and engage in deliberations;

(d) be guided by the criteria established by the Prime Minister;

(e) consult with the Chief Justice of Canada and any key stakeholders that the members consider appropriate;

(f) in establishing a list of qualified candidates, seek to support the Government of Canada’s intent to achieve a gender-balanced Supreme Court of Canada that also reflects the diversity of members of Canadian society, including 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; and

(g) comply with the Conflict of Interest Act and the Ethical and Political Activity Guidelines for Public Office Holders.

9 (1) Advisory Board members must declare to the other members any direct or indirect personal interest or professional or business relationship in relation to any candidate, including any gift or other advantage received by the members from the candidate.

(2) If such a declaration is made, the Advisory Board must decide, having regard to the nature of the interest or relationship, whether the member must withdraw from any deliberations about the candidate.

(3) If the Advisory Board decides that the member must withdraw from any deliberations about a candidate, those deliberations are undertaken by the remaining Advisory Board members, provided the number of remaining members is not less than four.

10 Advisory Board members may travel for the purpose of carrying out their mandate.

Confidentiality

11 (1) Advisory Board members must sign a confidentiality agreement as a precondition of their appointment.

(2) Personal information provided to, and deliberations of, the Advisory Board are confidential and must be treated in a manner consistent with the provisions of the Privacy Act.

(3) Advisory Board members must keep confidential any information brought before them in the performance of their functions.

Reporting

12 (1) Within one month after a judge is appointed, the Advisory Board must submit a report, in both official languages, to the Prime Minister that contains information on the carrying out of the mandate, the costs relating to the Advisory Board’s activities and the statistics relating to the applications received.

(2) The report may also contain recommendations for improvements to the process.

(3) The report must be made public.

Restriction

13 A member of the Advisory Board is not eligible to be considered for a federal judicial appointment for a period of one year after the day on which they cease to be a member of the Advisory Board.

Annex B: News Release, dated April 4, 2022, from the Office of the Prime Minister of Canada

Prime Minister launches process to select the next justice of the Supreme Court of Canada
Ottawa, Ontario – April 4, 2022

The Prime Minister, Justin Trudeau, today launched the process to select the next justice of the Supreme Court of Canada, who will fill the vacancy created by the upcoming retirement of Justice Michael J. Moldaver.

The Prime Minister also announced the Honourable H. Wade MacLauchlan, former Premier of Prince Edward Island, as Chair and member of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. This non-partisan board is responsible for identifying candidates who are jurists of the highest calibre, functionally bilingual, and representative of the diversity of our country.

After the application period closes, the Advisory Board will review applications and submit a shortlist of highly qualified candidates to the Prime Minister for consideration.

Justice Moldaver was appointed to the Supreme Court of Canada from the Ontario Court of Appeal in 2011. In recognition of the convention of regional representation, the process will be open to all qualified applicants from Ontario.

Quote

“The Supreme Court of Canada plays a critical role in Canada’s democracy. This open, transparent, and independent process we are launching today will identify esteemed Canadian legal minds to serve at the highest court of our country. I wish to take this opportunity to thank Justice Moldaver for his service over the past decade as a justice of the Supreme Court, and congratulate him on his distinguished judicial career that has spanned more than three decades. I also wish to thank the Right Honourable Kim Campbell for her service in chairing the Advisory Board over the past six years.”

– The Rt. Hon. Justin Trudeau, Prime Minister of Canada

Quick Facts

  • Qualifying candidates who wish to be considered for the upcoming vacancy must submit an application package no later than 23:59 Pacific time on May 13, 2022.
  • Those interested in applying are encouraged to first review the statutory requirements set out in the Supreme Court Act, and the qualifications and assessment criteria that will guide the advisory board in evaluating a candidate’s suitability.
  • Candidates may demonstrate they satisfy the geographical requirement by reference to their bar membership, judicial appointment, or other relationship with the province of Ontario.
  • The Supreme Court of Canada consists of nine judges, including a chief justice. They are all appointed by the Governor in Council, and must have been either a judge of a superior court or a member of at least 10 years’ standing of the bar of a province or territory.
  • In 2016, the Government of Canada announced a new process for Supreme Court of Canada judicial appointments. It included the creation of an independent and non-partisan advisory board to identify qualified and suitable candidates for appointment to the Supreme Court of Canada.
  • The remaining members of the Advisory Board will be announced later this spring.
  • The Advisory Board will now include an additional member nominated by the Indigenous Bar Association to advance the Minister of Justice’s mandate letter commitment to work with stakeholders to encourage more Indigenous Peoples to join the bench.
  • Justice Moldaver will retire from the Supreme Court of Canada effective September 1, 2022.

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Annex C: News Release, dated May 16, 2022, from the Office of the Prime Minister of Canada

Prime Minister announced the members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments.
Ottawa, Ontario – May 16, 2022

The Prime Minister, Justin Trudeau, today announced the members of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments. The members of the Independent Advisory Board will identify candidates to fill the upcoming Supreme Court of Canada vacancy, which will be created by the retirement of the Honourable Michael J. Moldaver in September.

The following members have been named to the Independent Advisory Board:

  • Paulette Senior, President and CEO of the Canadian Women’s Foundation
  • Konrad Sioui, former Grand Chief of the Huron-Wendat Nation
  • The Honourable Louise Charron, former Supreme Court of Canada Justice
  • Jacqueline Horvat, founding partner of the law firm Spark Law
  • Richard Jochelson, Dean of Law at the Faculty of Law of the University of Manitoba
  • Charlene Theodore, Chief Inclusion Officer at McCarthy Tétrault
  • David Nahwegahbow, founding partner of the law firm Nahwegahbow Corbiere

Coming from diverse backgrounds, the members will work alongside the Honourable H. Wade MacLauchlan, Chair of this independent and non-partisan board, to identify candidates who are jurists of the highest calibre, functionally bilingual, and representative of the diversity of our country. The candidates will be selected from applications received during the six-week application period, which closed on May 13, 2022. The members will submit a shortlist of highly qualified candidates to the Prime Minister for consideration.

Quote

“The Supreme Court of Canada is recognized internationally as a strong and independent judicial institution, and we are committed to ensuring that judges are appointed through a process that is transparent, inclusive, and accountable to Canadians. I am confident that the talented members named today to the Independent Advisory Board will recommend the most exceptional and deserving individuals for appointment to Canada’s highest court.”

– The Rt. Hon. Justin Trudeau, Prime Minister of Canada

Quick Facts

  • The application period for qualified candidates to the Supreme Court of Canada was open to all qualified applicants from Ontario, in recognition of the convention of regional representation.
  • Justice Moldaver was appointed to the Supreme Court of Canada from the Ontario Court of Appeal in 2011. He will retire effective September 1, 2022.
  • For the first time, the Independent Advisory Board includes an additional member nominated by the Indigenous Bar Association, to advance the Minister of Justice’s mandate letter commitment to work with stakeholders to encourage more Indigenous Peoples to join the bench.
  • In 2016, the Government of Canada announced a new process for Supreme Court of Canada judicial appointments. It included the creation of an independent and non-partisan advisory board to identify qualified and suitable candidates for appointment to the Supreme Court of Canada.
  • The Supreme Court of Canada consists of nine judges, including a Chief Justice. They are all appointed by the Governor in Council, and must have been either a judge of a superior court or a member of at least 10 years’ standing of the bar of a province or territory.

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Annex D: Biographical Notes on the Members of the Advisory Board

The Independent Advisory Board for Supreme Court of Canada Judicial Appointments (Advisory Board) is an independent and non-partisan body whose mandate is to provide non-binding merit-based recommendations to the Prime Minister on Supreme Court of Canada appointments.

The Advisory Board consists of the eight following members:

The Honourable H. Wade MacLauchlan, Chairperson
Nominated by the Minister of Justice
The Honourable H. Wade MacLauchlan, former lawyer and renowned legal scholar, and the 32nd Premier of Prince Edward Island.

Paulette Senior, Member
Nominated by the Minister of Justice
President and CEO of the Canadian Women’s Foundation.

Konrad Sioui, Member
Nominated by the Minister of Justice
Former Grand Chief of the Huron-Wendat Nation.

Charlene Theodore, Member
Nominated by the Canadian Bar Association
Chief Inclusion Officer at McCarthy Tétrault.

Jacqueline Horvat, Member
Nominated by the Federation of Law Societies of Canada
Founding partner of the law firm Spark Law.

The Honourable Louise Charron, Member
Nominated by the Canadian Judicial Council
Former Supreme Court of Canada Justice.

Richard Jochelson, Member
Nominated by the Council of Canadian Law Deans
Dean of Law at the Faculty of Law of the University of Manitoba.

David Nahwegahbow, Member
Nominated by the Indigenous Bar Association
Founding partner of the law firm Nahwegahbow Corbiere.



The Honourable H. Wade MacLauchlan, C.M., O.P.E.I.
Chairperson

The Honourable H. Wade MacLauchlan was the 32nd Premier of Prince Edward Island (2015‑19) and served as PEI’s Attorney General as well as Minister of Aboriginal Affairs, Intergovernmental Affairs, Justice and Public Safety, and, for a period, Finance. He served terms as Chair of the Council of the Federation, the Council of Atlantic Premiers, and the New England Governors and Eastern Canadian Premiers.

Mr. MacLauchlan is President Emeritus of the University of Prince Edward Island, where he served as President from 1999 to 2011. He was previously Dean of Law at the University of New Brunswick (UNB) and founding Director of the UNB Centre for Property Studies. Prior to that, he was Associate Professor and Director of the Civil Law / Common Law Exchange Program at Dalhousie Law School. He served as law clerk in the Supreme Court of Canada in 1981-82 and was Administrative Law Editor of the Supreme Court Law Review from 1990 to 1993.

Mr. MacLauchlan is an honorary member of the Law Society of Prince Edward Island, and served on the Council of the Law Society of New Brunswick (1991-96) and as Chair of its Sesquicentennial Committee. He was an active member of the Council of Canadian Law Deans and the Canadian Association of Law Teachers (CALT), including as Chair of the CALT Special Advisory Committee on Equality in Legal Education.

Mr. MacLauchlan has played leadership roles in national and regional organizations, including as a director of the Public Policy Forum, the Canadian Institute for the Administration of Justice, the Association of Atlantic Universities, CANARIE Inc., the Atlantic Provinces Economic Council, the Federation of PEI Municipalities, Dalhousie Legal Aid, the Muriel McQueen Fergusson Centre for Family Violence Research, the Windsor Foundation, and the Medavie Health Foundation. He was a director of the Association of Universities and Colleges of Canada (AUCC) and Chair of the AUCC Standing Advisory Committee on International Relations.

Mr. MacLauchlan has been recognized through membership in the Order of Canada (2008) and the Order of Prince Edward Island (2014). In 2010, he was awarded the Institute of Public Administration of Canada (IPAC)’s Lieutenant-Governor’s Medal for Public Service Leadership and, in 2013, he was an inaugural recipient of the Frank McKenna Award for outstanding contributions to public policy by Atlantic Canadians conferred by the Public Policy Forum.

Mr. MacLauchlan holds a Bachelor’s Degree in Business Administration from the University of Prince Edward Island, a Bachelor of Laws from the University of New Brunswick, and a Master of Laws from Yale University. He lives in West Covehead, PEI with his partner Duncan McIntosh.

Paulette Senior, Member

Paulette Senior is President and CEO of the Canadian Women’s Foundation. She joined the Foundation in 2016, after 10 years as CEO of YWCA Canada. In 2021, she was awarded an honorary Doctor of Laws degree from the University of Lethbridge. She was nominated by the Minister of Justice and Attorney General of Canada.

Konrad Sioui, Member

Konrad Sioui is the former Grand Chief of the Huron-Wendat Nation in Wendake, near Quebec City. Prior to serving as Grand Chief, he was the representative of the Assembly of First Nations in Geneva, from 1985 to 1992. He has been the Chairman of the Board of Directors of the Société de l’assurance automobile du Québec (SAAQ) since January 2021. He was nominated by the Minister of Justice and Attorney General of Canada.

Charlene Theodore, Member

Charlene Theodore is Chief Inclusion Officer at McCarthy Tétrault. She is a member and former Director of the Canadian Association of Black Lawyers (CABL). She is a recipient of a 2017 Lexpert Zenith Award recognizing work in advancing the interests of women in the legal profession and society. She was nominated by the Canadian Bar Association.

Jacqueline Horvat, Member

Jacqueline Horvat is a litigation lawyer and a founding partner of the law firm Spark Law. She is currently serving her third term as a bencher of the Law Society of Ontario, where she has been Chair of multiple committees. In addition, she is the Ontario representative on the Council of the Federation of Law Societies of Canada. She was nominated by the Federation of Law Societies of Canada.

The Honourable Louise Charron, Member

The Honourable Louise Charron was appointed to the Supreme Court of Canada in October 2004 and retired from the Court in 2011. She was the first native-born Franco-Ontarian Supreme Court judge, and was appointed a Companion of the Order of Canada in 2012. She was nominated by the Canadian Judicial Council.

Richard Jochelson, Member

Richard Jochelson is the Dean of Law at the Faculty of Law of the University of Manitoba. He previously taught criminal law for 10 years at the University of Winnipeg and worked at a large Canadian law firm. As an academic, he has also authored over 70 publications. He was nominated by the Council of Canadian Law Deans.

David Nahwegahbow, Member

David Nahwegahbow is the founding partner of the law firm Nahwegahbow Corbiere, which acts exclusively for First Nation individuals, communities, and organizations. He is Anishinaabe from Whitefish River First Nation. He is the recipient of multiple awards, including the Indigenous Bar Association’s Indigenous Peoples Counsel (IPC) designation, the National Aboriginal Achievement Award (now Indspire Awards) for Law and Justice, the Common Law Honour Society from the University of Ottawa, the Law Society of Ontario’s Law Society Medal, the Advocates’ Society Award of Justice, and the Lifetime Achievement Award from the Anishinabek Nation. He was nominated by the Indigenous Bar Association.

Annex E: Qualifications and Assessment Criteria

 

Qualifications

The qualifications for appointment to the Supreme Court of Canada are set out in the Supreme Court Act, R.S.C. 1985, c. S 26. Section 5 provides that “Any person may be appointed a judge who is or has been a judge of a superior court of a province or a barrister or advocate of at least ten years standing at the bar of a province.”

In order to be eligible for appointment to the Supreme Court of Canada, a candidate must be:

(1) a current judge of a superior court of a province, including courts of appeal;

(2) a former judge of such a court;

(3) a current barrister or advocate of at least 10 years standing at the bar of a province; or

(4) a former barrister or advocate of at least 10 years standing.

There are special rules for appointment of three judges from Quebec. Section 6 provides that “At least three of the judges shall be appointed from among the judges of the Court of Appeal or of the Superior Court of the Province of Quebec or from among the advocates of that Province.” In the Reference re Supreme Court Act, ss 5 and 6, the Supreme Court stated that only current superior court judges (i.e. judges of the Court of Appeal of Quebec and the Superior Court of Quebec) and current members of the Quebec bar of at least 10 years standing are eligible for appointment to one of the three Quebec positions on the Supreme Court.

All judges of the Supreme Court must live in the National Capital Region or within 40 kilometres thereof. Candidates must either currently meet this qualification or undertake to move their residence, if appointed to the Supreme Court, in order to meet it.

Functional bilingualism

The Government has committed to only appoint judges who are functionally bilingual.

The Supreme Court hears appeals in both English and French. Written materials may be submitted in either official language and counsel may present oral argument in the official language of their choice. Judges may ask questions in English or French. It is expected that a Supreme Court judge can read materials and understand oral argument without the need for translation or interpretation in French and English. Ideally, the judge can converse with counsel during oral argument and with other judges of the Court in French or English.

Assessment Criteria

Judges of the Supreme Court of Canada face multiple, complex and occasionally competing expectations. In keeping with Canada’s evolution into a mature constitutional democracy, the role of the courts and the Supreme Court in particular, has become ever more important. The criteria for appointment to the Court must reflect both the needs of any court of final appeal, and the particular circumstances, history and context of Canadian society and its legal system. The criteria must facilitate the Court’s ability to: resolve disputes between and among all manner of parties, communicate its decisions effectively to the Canadian public, uphold the constitution, and protect the rule of law.

Criteria for assessment may be grouped along two axes, one individual and the other institutional. Individual criteria relate to the skills, experience and qualities of candidates themselves. Particulars of legal training, of non-legal professional experience and of community involvement will vary greatly from individual to individual, but must be assessed to arrive at an evaluation of the candidate’s potential for excellence in the judicial function. There are also numerous personal qualities that will bear on whether a candidate has the appropriate judicial temperament. Institutional criteria will overlap to some degree with individual ones. But as the Court’s composition shifts over time, particular needs may emerge as more necessary to enable the Court to perform its general and final appellate function in all legal areas.

Part of the selection process will involve determining the ways and degree to which particular candidates embody the skills, experience and qualities that best meet the Court’s needs at a particular point in time. The selection process must retain an appropriate degree of flexibility.

Personal Skills and Experience

1. Demonstrated superior knowledge of the law

The chief consideration for any appointment is a person’s ability to perform, and achieve excellence in, judging. At the Supreme Court, cases and references can arise in any legal area including public, private and international law. Judges must interpret and apply the governing statute and rules of the Supreme Court in a variety of proceedings relating to hearings, motions and appeals. Candidates for the Court must therefore possess deep knowledge of the law, in particular Canadian law. Knowledge of indigenous legal traditions may also be considered. This depth of skill may be acquired in a variety of ways: specialized legal training and study, professional practice, authoritative or scholarly legal writing and/or prior judicial experience.

The Supreme Court hears cases from matters under federal jurisdiction as well as from all provinces and territories, including Quebec, which follows a civil law tradition for most private law matters. Familiarity with the civil law tradition, therefore, is a strength for any candidate.

2. Superior analytical skills

A jurist must synthesize, distinguish, compare and contrast a variety of legal sources. They must efficiently determine which of the vast possible materials that constitute “the law” are most relevant to a specific legal question; and understand, weigh and resolve conflicts among those materials. An appellate judge must also review lower court decisions, determine appropriate grounds of appeal, distinguish between questions of fact and law and apply the suitable level of deference or correction. All of these are analytical functions requiring an exceptionally high degree of skill and discernment.

3. Ability to resolve complex legal problems

The core function of the Supreme Court is to adjudicate legal disputes and to provide reasons explaining its decisions. As an adjudicator, a judge is not just required to hear a case, but to give an answer: to bring the matter to a legal conclusion. In appellate cases, resolution may be elusive as the issues tend to feature reasonably competing arguments. Nonetheless, a judge must be able to arrive at a sound decision, to support that decision with reasons and to provide the requisite certainty so that the instant dispute is resolved, and so that lower courts receive sufficient guidance to decide similar cases in the future.

Therefore, prior experience in adjudication is relevant though not essential. Adjudication can occur in many contexts, including administrative tribunals, arbitration bodies, and trial and appellate courts. As the Supreme Court is itself an appellate court, prior appellate judicial experience may be especially relevant but, again, is not essential for appointment.

4. Awareness of, and ability to synthesize information about, the social context in which legal disputes arise

A judge should demonstrate a general awareness of and an interest in knowing about the social problems that give rise to cases coming before the courts. They should be sensitive to changes in social values relating to the subject matter of cases before the Supreme Court. Many of the cases that the Supreme Court hears are not solely focused on technical questions of law. Instead, they involve complex interactions between law and fact, particularly social facts that help to explain a law’s purpose, the way that it tends to function and its effects on people or society as a whole. This interaction between law and social fact is most prominent in constitutional cases, but is not limited to them. A judge must therefore be able to receive evidence and argument about these social facts, or context, and use them to appropriately resolve the specific questions posed.

5. Clarity of thought, particularly as demonstrated through written expression

In most cases, the Supreme Court is expected to, and does, issue written reasons for its decisions. Decisions are the Court’s most important method of communicating with parties, with courts, with other branches of government, and with the Canadian public. Reasons help to explain the basis for deciding complex legal issues one way versus another. Reasons also satisfy the Court’s duty to provide guidance to the lower courts which are expected to apply those decisions in future cases. Excellence in written expression is thus essential to the Court’s work, and a candidate’s prior writing must be reviewed. Such writing can take a number of forms: judicial decisions, reports, memoranda of legal arguments, books, treatises and scholarly articles. The writing may be reviewed for, among other things, clarity, precision, command of the law, persuasiveness and balance. It is expected that the materials reviewed will primarily be legal in nature, though non-legal written expression may provide some assistance.

6. Ability to work under significant time pressures requiring diligent review of voluminous materials in any area of law

The Supreme Court hears appeals in all areas of law. Its nine members share a variety of adjudicative tasks. Cases at the Supreme Court often contain hundreds of pages of materials, and judges work on multiple cases at the same time. Judges must review materials in preparation for cases, review materials for decisions they are writing and review drafts and memos from their colleagues. The workload is heavy and constant. The job therefore requires significant stamina, industry and learning ability.

7. Commitment to public service

Judges are part of the community and fulfill an essential service to the public in addition to their constitutional role as impartial dispute arbiters. A demonstrated commitment to community engagement through involvement in community and volunteer organizations is a strength.

Personal Qualities

1. Irreproachable personal and professional integrity

The Supreme Court has noted: “The judge is the pillar of the entire justice system and of the rights and freedoms which that system is designed to promote and protect”. Judges must themselves embody the ideals upon which the rule of law depends.

Canadians, thus, rightfully expect the highest level of ethical conduct from judges. As the Chief Justice of Canada has stated, “The ability of Canada’s legal system to function effectively and to deliver the kind of justice that Canadians need and deserve depends in large part on the ethical standards of our judges.” As noted by the Canadian Judicial Council’s Ethical Principles for Judges, “Public confidence in and respect for the judiciary are essential to an effective judicial system and, ultimately, to democracy founded on the rule of law.”

2. Respect and consideration for others

The Supreme Court is a collegial court which is composed of nine judges who work and sit together day in and day out. Its judges deal with issues of the highest national importance. Their decisions are final and not subject to appeal to any other court in Canada. It is critical that each judge is able to work collaboratively with his or her colleagues and debate issues in a respectful and constructive manner. In addition, judges must be sensitive when dealing with persons in subordinate positions. It is expected that they will model the highest standards of professionalism, respect and courtesy.

3. Ability to appreciate a diversity of views, perspectives and life experiences, including those relating to groups historically disadvantaged in Canadian society

Along with legal expertise, a judge will invariably draw on common sense and experience. It is, therefore, crucial that their perspective is neither too narrow nor resistant to change. A judge must have the capacity to empathize with persons who come from backgrounds that are very different from her own. 

4. Moral courage

Judicial independence has been recognized as an unwritten constitutional principle under Canada’s Constitution. It exists in order to protect the ability of judges to decide cases impartially, free of any external influence or coercion. Canadian judges enjoy a high degree of independence that is respected around the world. Nevertheless, Supreme Court judges sometimes face extremely challenging issues. They may be faced with making a decision that is at odds with the stated wishes of the government, with public opinion or with the views of their colleagues. This requires a measure of fortitude.

5. Discretion

Judges deal with sensitive and personal information. Their discussions are subject to deliberative secrecy and cannot be revealed. It is critical therefore that judges conduct themselves in a discreet fashion.

6.Open-mindedness

One of the most important qualities of a judge is the ability to maintain an open mind about any case that comes before him or her. To be clear, judges are not expected to operate as blank slates. The fact that a candidate has expressed an opinion on some issue that may one day come before the Court is not disqualifying. But a judge must be seen as able to weigh the evidence and argument in a particular case fairly and impartially, and to set aside any prior personal opinions when rendering a decision.

Institutional Needs of the Court

1. Ensuring a reasonable balance between public and private law expertise, bearing in mind the historic patterns of distribution between those areas in Supreme Court appeals

The Supreme Court of Canada is a general court of appeal for Canada which hears appeals in all subject areas from provincial and territorial courts of appeal, from the Federal Court of Appeal and from the Court Martial Appeal Court of Canada. According to the most recent statistics, approximately one quarter of the cases heard by the Supreme Court are criminal non-Charter cases, almost another fifth are criminal Charter cases, and another fifth are non-criminal constitutional/Charter cases. The Court hears other types of cases but the subject-areas just noted represent the most significant areas of the Court’s workload.

2. Expertise in any specific subject matter that regularly features in appeals and is currently underrepresented on the Court

Because of its diverse caseload, the Court must have judges with a diversity of expertise in order to address particular subject matters that will arise. A vacancy on the Court may give rise to a need for expertise in a particular subject matter: e.g. criminal, administrative, federal or commercial law.

3. Ensuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society

Canada is one of the world’s most diverse societies, but that diversity is not fully reflected in its institutions. The Supreme Court is the most important and recognizable symbol of the justice system. Having a Court that is reasonably reflective of Canadian diversity helps to ensure that, in any particular case, the Court can benefit from a range of viewpoints and perspectives. A reasonably reflective Court also promotes public confidence in the administration of justice as well as in the appointment process.

 

Annex F: Functional Bilingualism and the Supreme Court of Canada Judicial Appointments Process

Functional Bilingualism

The Qualifications and Assessment Criteria with respect to the functional bilingualism language requirement are as follows:

The Government has committed to only appoint judges who are functionally bilingual. 

The Supreme Court hears appeals in both English and French. Written materials may be submitted in either official language and counsel may present oral argument in the official language of their choice. Judges may ask questions in English or French. It is expected that a Supreme Court judge can read materials and understand oral argument without the need for translation or interpretation in French and English. Ideally, the judge can converse with counsel during oral argument and with other judges of the Court in French or English.

The Office of the Commissioner for Federal Judicial Affairs Canada

The Office of the Commissioner for Federal Judicial Affairs (OCFJA) has been tasked with determining whether candidates for judicial appointment to the Supreme Court of Canada meet this requirement.

Language Requirement

The language requirement is composed of three parts:

  1. Whether candidates can read materials without the need for translation or interpretation in English and French;
  1. Whether candidates can understand oral argument without the need for translation or interpretation in English and French;
  1. Ideally, whether candidates can converse with counsel during oral argument and with other judges of the Court in French and English.

Assessment Tools and Rating

The OCFJA developed a three-part evaluation process to be used for assessing each component of the language requirement based on its expertise in language training for federally appointed judges. A scale of competencies and measurable performance indicators and corresponding rating guides were set for each of the three abilities.

The entire assessment was timed to last 1 hour per candidate.

The first segment involved the reading of a legal text by the candidate, followed by comprehension questions put to the candidate in the official language of their choice. This first part lasted 20 minutes.

The second part of the assessment consisted of a legal pleading each candidate had to listen to, followed by comprehension questions put to the candidate in the language being evaluated. This second part lasted 20 minutes.

The third part of the assessment sought to determine whether each candidate was able to converse and interact fluently on diverse subjects, including legal issues, in their second official language. A guided conversation using set criteria formed the basis of this segment which also lasted 20 minutes.

A minimum score of 3 out of 5 on each part was required for candidates to meet the functionally bilingual criteria.

Annex G: Outreach letter sent to Organizations

Dear Madam/Sir,

RE: Supreme Court of Canada Appointment Process – 2022

On April 4, 2022, the Prime Minister of Canada opened the process to select the next justice of the Supreme Court of Canada to fill the vacancy which will be created by the retirementof the Honourable Michael J. Moldaver on September 1, 2022. (View Prime Minister’s news release)

Under the process, used for the first time in 2016, an independent and non-partisan Advisory Board has been given the task of reviewing all applicants, identifying qualified and functionally bilingual candidates for the Prime Minister’s consideration.

The Advisory Board’s Terms of Reference stipulate that, in establishing a list of three to five qualified and functionally bilingual candidates, members must seek to support the Government of Canada’s intent to achieve a gender-balanced Supreme Court of Canada that also reflects the diversity of members of Canadian society, including Indigenous peoples, persons with disabilities and members of ethnic, linguistic and other minority communities, including those whose members’ gender identity or sexual orientation differs from that of the majority.

In recognition of the convention of regional representation, this process is open to candidates from the province of Ontario. Candidates may demonstrate that they satisfy the geographical requirement by reference to their bar membership, judicial appointment or other relationship with Ontario. The question of whether a candidate is functionally bilingual will be assessed by the Office of the Commissioner for Federal Judicial Affairs, in accordance with established and objective criteria.

As the Advisory Board’s Chairperson, I encourage you to use your networks and knowledge of the judiciary and legal community in your jurisdictions to identify qualified candidates, and urge them to submit an application through the Office of the Commissioner for Federal Judicial Affairs at the following address: https://www.fja-cmf.gc.ca/scc-csc/2022/form-formulaire-eng.html. Your early attention to this matter is much appreciated as the deadline to file an application for appointment to the Supreme Court of Canada is May 13, 2022, at 23:59 PDT.

Yours truly,

The Honourable H. Wade MacLauchlan, C.M., O.P.E.I.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

 

Annex H: Example of letter sent to individuals identified by Organizations

Dear Madam/Sir:

RE: Supreme Court of Canada Appointment Process – 2022

Your name has been suggest to the Independent Advisory Board for Supreme Court of Canada Judicial Appointments as a potential candidate to fill the vacancy which will be created by the retirement on September 1, 2022 of the Honourable Michael J. Moldaver.

Under the process announced by the Prime Minister on April 4, 2022 and used for the first time in 2016, an independent and non-partisan Advisory Board has been given the task of reviewing all applicants and identifying suitable candidates for consideration by the Prime Minister. The Advisory Board’s Terms of Reference call for it to establish a list of three to five qualified and functionally bilingual candidates.

In recognition of the convention of regional representation, this process is open to candidates from the province of Ontario. Candidates may demonstrate that they satisfy the geographical requirement by reference to their bar membership, judicial appointment or other relationship with Ontario. The question of whether a candidate is functionally bilingual will be assessed by the Office of the Commissioner for Federal Judicial Affairs, in accordance with established and objective criteria.

It is part of the mandate of the Advisory Board to actively seek out qualified candidates. To this end, the Advisory Board decided to reach out to a variety of groups and associations representing judges and lawyers. Given that you have been suggested as a potential candidate, we encourage you to give this matter your fullest consideration. Please note that the application deadline is May 13, 2022. The details of the Supreme Court of Canada appointments process are described on the website of the Office of the Commissioner for Federal Judicial Affairs at https://www.fja-cmf.gc.ca/scc-csc/2022/index-eng.html. Thank you for your consideration.

Yours truly,

The Honourable H. Wade MacLauchlan, C.M., O.P.E.I.

Chairperson, Independent Advisory Board for Supreme Court of Canada Judicial Appointments

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