The Supreme Court of Canada.Justin Tang/The Canadian Press
The deadline to apply for an open seat on the Supreme Court of Canada is Monday, and Prime Minister Mark Carney is expected to have more candidates to choose from the West compared with the region’s previous vacancy on the top court.
Justice Sheilah Martin, from Calgary, announced her retirement in mid-January. Her last day is May 30. Mr. Carney, who picks the new judge, has said he will make the appointment before the court’s fall session. By convention, two of nine Supreme Court judges are Westerners.
A process implemented in 2016 requires new Supreme Court judges to be “functionally” bilingual. In 2023, the last time there was an open seat on the top court from Western Canada, the rule prompted some complaints that it shut out otherwise qualified candidates.
The list of names is longer this time, legal experts say. In recent years, more bilingual judges have been appointment to the top courts in British Columbia, Alberta, Saskatchewan and Manitoba.
Such appellate judges are potential candidates for this Supreme Court opening. Yet a leading name is a long-time top judge on the trial-court level, according to legal academics, and current and retired judges: Chief Justice Glenn Joyal of the Court of King’s Bench of Manitoba.
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He has run that court since 2011. He is in his mid-60s, has previously applied to the Supreme Court and is expected to apply this time. Through a spokeswoman, he declined comment.
Justice Paul Favel of the Federal Court is another potential candidate. Should he apply, his candidacy would show how contenders for the Supreme Court from the West have adapted to the bilingualism rule. When he joined the Federal Court in 2017 from Saskatchewan, he was not bilingual and didn’t apply for the Supreme Court opening in 2023 for that reason.
This time, his French is considered up to grade. And there hasn’t been a Supreme Court judge from Saskatchewan in 53 years. Five of the past seven Western openings went to Alberta. Justice Favel did not respond to a request for comment.
“He ranks up there with the top judges in Canada,” said Kathleen Mahoney, a law professor emerita at the University of Calgary and acquaintance of Justice Favel who has followed his work on the bench. “He has a deep understanding of justice and human dignity.”
Legal experts also pointed to judges such as Naheed Bardai of the Saskatchewan Court of Appeal and Peter Edelman of the B.C. Court of Appeal. Both judges are relatively young and new to their province’s appellate court. Justice Bardai declined comment; Justice Edelmann did not respond to a request for comment.
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Justice April Grosse of the Alberta Court of Appeal and Manitoba Chief Justice Marianne Rivoalen of the province’s appeal court are also well qualified to apply, but legal insiders say neither plans to. The judges did not respond to requests for comment.
Other potential candidates may include Justice Gerald Heckman of the Federal Court of Appeal, who is from Manitoba; Yukon Supreme Court Justice Edith Campbell; and Justice Jolaine Antonio of the Alberta appeal court.
In 2016, the federal government adjusted the system to choose Supreme Court judges. The prime minister appoints an advisory board; the board interviews applicants and submits a shortlist of at least three names. To make the shortlist, judges must understand oral arguments in court without an interpreter’s translation and read legal filings in English and French.
The prime minister makes the final choice.
In 2017, when former chief justice Beverley McLachlin, from Vancouver, retired, there were 11 applicants from the West. An advisory board recommended three people, and Justice Martin was named to the top court.
In 2023, the opening for Western Canada attracted 13 applicants but the board put forth only two candidates’ names. Previous boards had described their shortlists as “recommended” candidates. In 2023, the board called their two candidates “exceptional” and “absolutely outstanding.”
Mary Moreau, a trial court judge who had been Chief Justice of the Court of King’s Bench of Alberta for six years, was named to the top court. Justice Moreau’s appointment marked the first time the court had a majority of women on the bench.
The 2023 shortlist of only two names, with the French rule widely seen as a hurdle, sparked an outcry that too many otherwise qualified candidates were excluded.
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The debate reignited after Justice Martin announced her retirement. In early February, Alberta Premier Danielle Smith in a public letter to Mr. Carney said functional bilingualism on the Supreme Court “entrenches systemic barriers and alienation for Western Canadians.”
Gerard Kennedy, associate law dean at the University of Alberta, said a typical shortlist is likely this year: “I’d be surprised if there weren’t at least three names given to the Prime Minister.”
In decades past, a prime minister chose a new judge in a secret process. This happened as recently as 2015. Some people extol the old system as it allowed the prime minister free rein to choose who they felt was best for the job.
Mr. Carney has not yet named an advisory-board chair or members. The board consults widely but its recommendations are only suggestions.
“To ensure the Prime Minister’s discretion to nominate an individual for appointment to the Supreme Court is not fettered, the shortlist will not be binding,” according to Federal Judicial Affairs, which helps run the process.
Critics have long argued that the appointment of a Supreme Court judge should be detached from the partisan hand of the current government.
While judges in Canada exert their independence, and judges often are not defined by the politics of the party that appointed them, unlike often on the Supreme Court of the United States, advocates argue that a less political process would bolster Canadians’ confidence in Canada’s top court.
“The current system gives the PM and cabinet way too much partisan, political control of who is appointed,” said Duff Conacher, founder of Democracy Watch.