2. Questions and Answers
Supreme Court of Canada Appointments Process – 2023
Nominee and shortlist
- Q 1 What was it about the nominee that made them stand out in comparison with other candidates on the shortlist?
- Q 2 How did you and the Prime Minister assess the relative strengths of the candidates on the shortlist?
- Q 3 [Redacted]
- Q 4 Who was on the shortlist?
- Q 5 This is the third appointment from Alberta in a row. The last judge from BC retired in 2017, from Manitoba in 2015 and from Saskatchewan in 1973. No one from Northern Canada has ever sat on the Supreme Court. Why another appointment from Alberta?
- Q 6 [Redacted]
- Q 7 Was the nominee the candidate you recommended to the Prime Minister?
- Q 8 Did you share the shortlist with those you consulted? Did you share other information about the candidates with those you consulted?
Functional bilingualism requirement and Official Languages Act
- Q 9 What level of bilingualism is required, and how is this assessed?
- Q 10 Bill C-13 received Royal Assent on June 20, 2023. Do its amendments to the Official Languages Act enshrine the functional bilingualism requirement?
- Q 11 Do the amendments to the Official Languages Act force the Supreme Court of Canada to sit in panels of seven or fewer judges? Would this jeopardize the functioning of the Court?
- Q 12 Is there a risk that Bill C-13’s amendment to section 16 of the Official Languages Act in relation to language requirements for the Supreme Court of Canada is unconstitutional?
- Q 13 Why doesn’t the Government directly enshrine the bilingualism requirement by making it a requirement for appointment to the Supreme Court of Canada?
- Q 14 According to some news coverage, the bilingualism requirement may have unduly limited the pool of applicants for this vacancy. Did you see any evidence of that? Is that a concern going forward?
Indigenous Representation
Diversity and Gender
- Q 16 The Government has emphasized the need for a Supreme Court of Canada that reflects the diversity of Canadians. How was diversity taken into account in the selection process?
- Q 17 What did the Government do to encourage more candidates from diverse communities to apply?
- Q 18 In what way does the nominee’s appointment advance the Government’s diversity goals?
Confidentiality
Timing of Process
Process and Independent Advisory Board
- Q 21 Why is the Q&A session with the nominee moderated by a law professor as opposed to the Chairs of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs?
- Q 22 Who decides who gets to sit on the Independent Advisory Board?
Nominee and shortlist
Q 1 What was it about the nominee that made them stand out in comparison with other candidates on the shortlist?
- Each candidate on the shortlist was outstanding in their own way, as assessed in relation to the qualifications and assessment criteria.
- [Redacted]
Q 2 How did you and the Prime Minister assess the relative strengths of the candidates on the shortlist?
- Decisions throughout the selection process have been based on the qualifications and assessment criteria, including the Prime Minister’s ultimate decision on the Government’s nominee.
- The assessment the Advisory Board provided for each candidate on the shortlist was of fundamental importance to this process.
- The Prime Minister’s decision was also informed by my recommendations.
- I am confident that the Prime Minister’s chosen nominee is remarkable both as a jurist and as a person. She will make an excellent Justice of the Supreme Court of Canada.
Q 3 [Redacted]
Q 4 Who was on the shortlist?
- Since establishing this new process, the Government has been clear that the shortlist will remain confidential. That was the expectation and undertaking under which candidates applied.
- In striking a careful balance between transparency and confidentiality, the Government decided that the process should respect the privacy of candidates so that as many qualified candidates as possible would apply.
- Consequently, I will not be commenting on the names on the shortlist, and I am confident that all those who have been involved in this process will respect their duty of confidentiality out of respect for the candidates and the integrity of the Supreme Court of Canada.
Q 5 This is the third appointment from Alberta in a row. The last judge from BC retired in 2017, from Manitoba in 2015 and from Saskatchewan in 1973. No one from Northern Canada has ever sat on the Supreme Court. Why another appointment from Alberta?
- According to convention, the nominee to fill this vacancy on the Court should come from Western or Northern Canada, and Chief Justice Moreau certainly meets that requirement. As I outlined in my remarks, Chief Justice Moreau is an outstanding jurist of exceptional caliber whose legal and judicial career has not just been based in the West, but immersed in it, indelibly shaped by its culture and traditions.
Q 6 [Redacted]
Q 7 Was the nominee the candidate you recommended to the Prime Minister?
- My advice and discussions with the Prime Minister on this matter are confidential.
- To respect the Prime Minister’s prerogative, the confidentiality of the process, and the reputation of the Supreme Court of Canada, it would be inappropriate for me to make any comments that might disclose the recommendations I made to the Prime Minister.
Q 8 Did you share the shortlist with those you consulted? Did you share other information about the candidates with those you consulted?
- The purpose of my consultations on the shortlist was to develop my recommendation to the Prime Minister as to who the Government’s nominee should be.
- We anticipated that those consulted would be able to share particular insights into the strength of candidates on the shortlist, based on, for example, knowledge of the candidate’s reputation for integrity within the legal and broader community.
- I did share the shortlist with some of those I consulted, such as the Opposition Justice critics and the Chief Justice of Canada. Members of Parliament, Senators and members of the Bar were each required to sign non-disclosure agreements before viewing the names on the shortlist. [Redacted]
- I did not share the detailed and rigorous analysis of each applicant’s file conducted by the Independent Advisory Board. [Redacted]
Functional bilingualism requirement and Official Languages Act
Q 9 What level of bilingualism is required, and how is this assessed?
- The qualifications and assessment criteria specify this functional requirement as follows: “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.”
- This competency is assessed independently by the Office of the Commissioner for Federal Judicial Affairs. I understand the Office of the Commissioner has developed an evaluation process for assessing the language requirement based on its expertise in language training for federally appointed judges.
Q 10 Bill C-13 received Royal Assent on June 20, 2023. Do its amendments to the Official Languages Act enshrine the functional bilingualism requirement?
- Clause 11 of the Bill amended section 16 of the Official Languages Act to remove the exception that formerly applied to the Supreme Court of Canada. Parties before the Court therefore have the right to a panel of judges who can hear their case in the official language of their choice, without the assistance of an interpreter, as is the case with other federally-constituted courts.
- The qualifications for appointment to the Supreme Court are set out in the Supreme Court Act and remain unchanged.
- I emphasize, however, that our Government remains committed to our policy of appointing functionally bilingual judges to the Court.
Q 11 Do the amendments to the Official Languages Act force the Supreme Court of Canada to sit in panels of seven or fewer judges? Would this jeopardize the functioning of the Court?
- I am committed to ensuring the Supreme Court of Canada is able to continue to discharge its fundamental functions to the benefit of all Canadians. The amendments resulting from Bill C-13 do not jeopardize the ability of the Court to function.
- The amendment does impose a duty on the Court to ensure the panel hearing a proceeding is able to understand the official language, or languages, chosen by the parties without the assistance of an interpreter. This aims to benefit Canadians by enhancing access to justice in both official languages.
- It would be inappropriate for me to speculate on the language competencies of existing judges or on the manner in which the Chief Justice of Canada would administer the Court.
- I add that our Government has, since 2016, upheld our commitment to appoint functionally bilingual judges. I am confident the Supreme Court would be able to continue to serve Canadians exceptionally well.
Q 12 Is there a risk that Bill C-13’s amendment to section 16 of the Official Languages Act in relation to language requirements for the Supreme Court of Canada is unconstitutional?
- The Supreme Court is a fundamentally important national institution. We believe the proposed institutional obligation is important and appropriate, not only to enhance access to justice in both official languages but to support official languages more broadly.
- In developing the proposed amendment, the Government carefully considered the jurisprudence in relation to the composition and essential features of the Supreme Court.
- We believe the proposal is consistent with this jurisprudence, while advancing the objective of ensuring equal access to the Court, regardless of the official language chosen by the parties that appear before it.
- I add that since 1988, section 16 of the Official Languages Act has set out the duty of every federal court to ensure that every judge who hears the proceedings in a given case can understand English or French, or both official languages (according to the choice made by the parties) without the assistance of an interpreter.
- An exception for the Supreme Court of Canada was inserted into section 16. Our Government believes the time has come to withdraw this exception. From a practical perspective, the past decades have seen the development of a pool of competent bilingual jurists across the country in every region of Canada. Our Government’s appointments over the past years have demonstrated this.
Q 13 Why doesn’t the Government directly enshrine the bilingualism requirement by making it a requirement for appointment to the Supreme Court of Canada?
- Our Government believes that its commitment to functional bilingualism for Supreme Court appointments ultimately promotes access to justice in both official languages. We remain committed to appointing individuals to the Supreme Court who are functionally bilingual.
- However, entrenching norms and values in statute is not the only way to promote them. We believe it is better to focus on moving the yardsticks in practice
Q 14 According to some news coverage, the bilingualism requirement may have unduly limited the pool of applicants for this vacancy. Did you see any evidence of that? Is that a concern going forward?
- Based on the outstanding jurists who applied for this vacancy, that is not a concern at all. Our Government remains committed to our policy of appointing functionally bilingual judges to the Court, a policy that has been in place since this Government’s first appointment in 2017. This policy has taken on added importance since Bill C-13 came into force last June and gave parties before the Court the right to a panel of judges who can hear their case in the official language of their choice, without the assistance of an interpreter.
Indigenous Representation
Q 15 Would the Government consider a Constitutional amendment to reserve one or more seats on the Court for Indigenous jurists?
- Our Government is committed to ensuring greater Indigenous representation in Canada’s legal institutions. I believe Canada’s judiciary is strengthened by the growing number of Indigenous jurists appointed to its ranks. Justice O’Bonsawin’s appointment to the Supreme Court of Canada last year marked a historic and meaningful milestone in this regard.
- That said, while our Government is proud of the progress made in appointing Indigenous jurists to our superior court judiciary, I acknowledge that more needs to be done.
- The structure and composition of the Supreme Court raise complex policy and legal questions that have been the subject of significant commentary and jurisprudence. Certain changes would require detailed consideration and broad-based discussions, and could also depend on constitutional reform requiring more than unilateral federal action.
Diversity and Gender
Q 16 The Government has emphasized the need for a Supreme Court of Canada that reflects the diversity of Canadians. How was diversity taken into account in the selection process?
- Our Government is deeply committed to increasing the diversity of the judiciary so that it reflects the diversity of Canada.
- For this and all vacancies on the Court, the Independent Advisory Board, the Prime Minister and I take as our starting point the published qualifications and assessment criteria. These criteria include diversity-related considerations. For example:
- the ability to appreciate a diversity of views, perspectives and life experiences, including those relating to groups historically disadvantaged in Canadian society; and
- the institutional goal of ensuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society.
- The choice of nominee involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit given the Supreme Court’s needs at this time.
- Canada has a remarkable complement of outstanding jurists of a variety of backgrounds, including an increasing number of racialized individuals and Indigenous Canadians. An important part of the selection process is to reach out to representative community and professional organizations in order to encourage candidates of diverse backgrounds to apply. Mr. MacLauchlan will be able to speak to the outreach completed by the IAB.
- I also note that our Government’s commitment to a diverse judiciary extends to all federal judicial appointments. Since 2015, we have succeeded in diversifying the ranks of the superior court judiciary at an unprecedented pace. As those courts become more fully reflective of Canadian society, the pool deepens of experienced judges who may seek appointment to the country’s highest court in the future. I have every expectation that this will be the case.
Q 17 What did the Government do to encourage more candidates from diverse communities to apply?
- First, as has been shared with this Committee previously, diversity on our nation’s highest court depends in part on diversity within the judiciary at large. The more we can make our superior courts reflective of the society they serve, the more opportunities we are providing for individuals from underrepresented backgrounds to gain exceptional judicial experience that would qualify them to serve on the Supreme Court of Canada.
- While this process takes time, I am extremely proud of our progress: not only are the majority of judges we have appointed since 2015 women, we have also appointed an unprecedented number of candidates who are racialized, including Black and Indigenous jurists, and candidates belonging to the 2SLGBTQIA+ community. I have every confidence that the changing face of Canada’s judiciary on the front lines will come to be reflected on its highest court.
- Second, we must be proactive in seeking out and encouraging candidates from underrepresented backgrounds and communities to apply to the Supreme Court. Mr. MacLauchlan will be able to speak to the outreach completed by the IAB.
- We will certainly continue to build on the momentum of these efforts for future vacancies at the Supreme Court.
Q 18 In what way does the nominee’s appointment advance the Government’s diversity goals?
- The manner in which we advance our diversity objective is, first and foremost, by establishing an open and transparent process that clearly lays out the criteria that will guide the decision-making process. The published qualifications and assessment criteria enshrine the importance of diversity by requiring that candidates be assessed with diversity in mind.
- The nominee was selected through a process that carefully considered all the assessment criteria, including those related to diversity. The difficult decision we made involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit for the Supreme Court’s needs at this time.
Confidentiality
Q 19 What steps have been taken to ensure the confidentiality of the process?
- The current selection process has strict confidentiality measures. The fundamental importance of confidentiality has been strongly emphasized to all those involved in the process. All members of the IAB, as well as MPs, senators and members of the Bar – have been required to sign a non-disclosure agreement. Members of my staff and members of the Prime Minister’s staff who worked on the process that led to the nomination also signed NDAs.
- The fair and dignified treatment of every candidate requires that this process be completed in confidence. I am committed to ensuring that this confidentiality be maintained.
Timing of Process
Q 20 The Independent Advisory Board has previously commented on the challenges that arise with tight timeframes. The time allotted for candidates to apply, and for the IAB to complete its review, has not been significantly expanded. Why didn’t the Government allow more time for this nomination process?
- The Government felt that the timelines allowed sufficient time for each stage of the process, including the rigorous assessment process carried out by the Independent Advisory Board and resulting in its shortlist of candidates. Certainly the process has succeeded in identifying an outstanding nominee.
- The timelines in place for this process responded to the extent possible to the Chief Justice of Canada’s public statements calling for the new judge to be able to participate as fully as possible in the Supreme Court of Canada’s fall session.
- We understand that this process is onerous both for candidates and for those involved in assessing them – as befits a process for a judicial appointment of this significance. Nonetheless, we are always receptive to feedback about how the process can be improved. I welcome the insights of Mr. MacLauchlan and his IAB colleagues in this respect, and I will ensure that their comments about timing receive close attention.
Process and Independent Advisory Board
Q 21 Why is the Q&A session with the nominee moderated by a law professor as opposed to the Chairs of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs?
- The role of the law professor in moderating the Q&A session aids in building confidence in the integrity of the appointments process, of the nominee, and of the judiciary as a whole.
- The nominee appears before the members of the House of Commons Standing Committee on Justice and Human Rights and the Standing Senate Committee on Legal and Constitutional Affairs, as well as a representative from each party with seats in the house. The purpose is to provide an opportunity for Parliamentarians and members of the public to get acquainted with the future justice of the Supreme Court of Canada. Selecting a non-political individual, such as a law professor, as moderator is intended to further the support the non-political nature of the process and contribute to its neutrality, transparency, and rigour.
- Law professors in particular are well-suited to the task of moderating such a session as they represent a fundamental element of our democratic society and the legal profession which gives rise to such appointments.
Q 22 Who decides who gets to sit on the Independent Advisory Board?
- The IAB is designed to be independent and socially reflective. Its members are nominated both by me and by national organizations that are closely connected to the administration of justice and preservation of the rule of law.
- Of the IAB’s eight members, three – including the Chair – are nominated by the Minister of Justice. The remaining five are nominated respectively by the Canadian Bar Association, the Federation of Law Societies of Canada, the Canadian Judicial Council, the Council of Canadian Law Deans, and the Indigenous Bar Association.
- ยท Each of the nominees to the IAB are selected for their ability to represent and engage with different facets of our diverse society, and for their understanding of the critical role that the Supreme Court of Canada plays in it. I don’t think there can be any doubt that Canadians have been served by an exceptional and capable group of individuals in the current IAB.
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