Prime Minister Justin Trudeau is choosing a judge for the Supreme Court of Canada for the fourth time, but finding someone who ticks all his boxes will prove a challenge.
Mr. Trudeau is a self-described feminist who has declared himself devoted to racial justice and reconciliation with Indigenous peoples. But in the end, someone will be left out when the appointment is made to replace Justice Rosalie Abella, who retires on Canada Day.
Canada’s highest court has never had a judge who was Indigenous or a member of a racialized minority. So now Mr. Trudeau must choose – and as the first prime minister to require fluency in both official languages, he has constrained his choices.
Even so, as it is his first opportunity to select from Ontario, Canada’s most diverse province, he does have choice. An Ismaili Muslim with South Asian roots and an Indigenous candidate studying for her doctorate in law are among those vying to transform the Supreme Court.
“The time is now to do it,” Jason Madden, a Métis lawyer licensed to practise in Ontario, Manitoba, Alberta and two territories, said in an interview. “It’s absolutely necessary to have that institution begin to reflect what Canada looks like in 2021.”
Mr. Trudeau – whose late father Pierre appointed the court’s first Jewish member, Bora Laskin, in 1970, and the first woman, Bertha Wilson, in 1982 – said before his first appointment in 2016 that he wished to make the Supreme Court more diverse. To do so, he tried to break with convention and open the search nationwide – but Parliament unanimously urged him to stick with established practice and replace a retiring judge from Atlantic Canada with someone from the same region.
With a limited field of bilingual candidates, he chose a white male, Malcolm Rowe, and made the first appointment from Newfoundland and Labrador. (Mr. Rowe was the province’s only bilingual appeal-court judge.) Mr. Trudeau’s two other appointments were a white woman, Sheilah Martin of Alberta, and a white man, Nicholas Kasirer of Quebec.
On July 1, Justice Abella, a liberal lion of the top court since 2004, its first Jewish woman and the first to be born in a refugee camp, reaches the mandatory retirement age of 75. The new judge must have a connection to Ontario.
By long-established practice, Ontario has three spots on the court, Atlantic Canada one, the West two. Only Quebec has its three positions reserved by law.
The Globe and Mail talked to more than a dozen senior members of the province’s legal community about Justice Abella’s possible replacement. The Globe is not identifying them so they could speak freely about individuals before whom they might argue cases.
The names of applications are not made public. Among the possibilities are Mahmud Jamal, an Ismaili Muslim born in Kenya, and Michelle O’Bonsawin, an Abenaki from a francophone community near Sudbury. Justice Jamal is a member of Ontario’s highest court, the Court of Appeal. Appeal courts are traditionally the source of most Supreme Court appointments. Justice O’Bonsawin is a member of the province’s Superior Court. Both are believed to have applied.
Justice Jamal is one of nine judges on the appeal court who hear cases in French. Justice O’Bonsawin is co-chairing a conference this summer of an Ontario association of French-speaking judges. The first Black member of the Ontario Court of Appeal, Justice Michael Tulloch, is not on the list of appeal judges who hear cases in French. Although he has been studying French, he is not believed to have applied – an example of how the bilingualism requirement may narrow Mr. Trudeau’s choices.
Justice Jamal is seen as an outstanding constitutional thinker. As a litigator, he appeared about 35 times before the Supreme Court on a wide variety of cases, from civil to constitutional to criminal to regulatory. His practice took him regularly to courts in other provinces, especially Quebec, British Columbia and New Brunswick.
And he has something in common with Justice Minister David Lametti: law degrees from McGill University and Yale University, and a clerkship at the Supreme Court of Canada. The Liberals appointed him straight from practice to the appeal court in 2019, a mark of the esteem in which they hold him. If selected, he could shape law and the social fabric for two decades, as he won’t be 75 until 2042.
Justice Jamal would symbolically be a fitting replacement for Justice Abella.
His family’s story is of migration in search of a better life – from Gujarat in British India to East Africa during the 19th-century railway boom, then to a village in England in 1959 where, he joked at his appeal court swearing-in ceremony, they were “the first foreigners … since the Norman invasion, and were often greeted with as much warmth.” He went to an Anglican school and learned to recite the Lord’s Prayer, and he read the Koran during evenings with his family.
Finally, it was on to Alberta in 1981. “We immediately felt so much more at home in Edmonton than we had ever felt anywhere else before,” he said at the same ceremony.
His wife, Goleta Samuri, is a member of the Baha’i faith whose family left Iran during the 1979 Islamic Revolution to escape persecution, and ultimately came to Canada as a refugee.
The Indigenous legal community has been lobbying the Prime Minister and Mr. Lametti to reserve a permanent spot for an Indigenous jurist on the Supreme Court of Canada.
Justice O’Bonsawin has been a Superior Court judge for four years, and is in her mid-40s. She has academic chops – she is pursuing her doctorate in law at the University of Ottawa while a judge. In her successful application for a federal judicial appointment, she defined herself as a “progressive” in her outlook on law, which fits with the Prime Minister’s own stated views.
But she does not have the kind of profile in the legal community associated with future Supreme Court judges. Before becoming a judge, she was general counsel with the Royal Ottawa Health Care Group, which includes mental-health hospitals and a research institute. While she held that job, she also studied for her master’s degree at Osgoode Hall Law School and raised two boys.
Superior Court Justice Todd Ducharme is the country’s first Métis judge, and has been on that court since 2004; he is bilingual. The Liberal government has overlooked Justice Ducharme in the past, both for the Supreme Court and for the Court of Appeal. Even so, said one senior lawyer, he would be a reliable Supreme Court judge. He is believed to have applied.
Superior Court Justice Shaun Nakatsuru, a Japanese-Canadian appointed in 2017 (his father’s family was interned during the Second World War in Canada, and his mother was living near Nagasaki when the United States dropped an atomic bomb in August, 1945), is seen as the closest to Justice Abella’s staunch liberalism. It is unclear whether he has applied.
Justice Nakatsuru said in his successful application for a federal judicial post that he has some French, but not enough to understand oral submissions in court.
Among female judges on the appeal court, Julie Thorburn is viewed as exceptionally strong, an excellent listener and adept in civil and criminal law. She has deep Liberal connections, although it was a Conservative government that previously appointed her to the Superior Court. Bilingual, she has an extensive background in francophone issues and, in 2015, co-authored Enhancing Access to Justice in French for the Ontario government. Adding further to the court’s diversity, she’s an opera singer who studied music at the University of Montreal. She is believed to have applied. The appeal court has other strong, bilingual women, but there is little indication they have applied.
From the practice of law, Guy Pratte is the son of a former Supreme Court judge, Yves Pratte (1977-79), who was appointed by Pierre Trudeau. The federal government retained Mr. Pratte last September to argue for the constitutionality of its carbon-pricing plan before the Supreme Court, and his bravura performance helped Ottawa win the case by a 6-3 count. The bilingual Mr. Pratte is also the president of the Advocates’ Society, a prominent legal group. It is unclear whether he has applied.
Some members of the legal community question whether Mr. Trudeau would replace a woman with a man. The appointment of a male judge would reduce the number of women on the nine-member court to three.
The aspirations of another female jurist may affect this appointment. Appeal court Justice Michal Fairburn has deep expertise in criminal law, as a former Crown and a leader of the Ontario Attorney-General’s criminal-appeals office. The Supreme Court’s top criminal-law expert, Justice Michael Moldaver, reaches the mandatory retirement age of 75 on Dec. 23, 2022. He will leave a large gap of expertise when he goes. Some legal observers see Justice Fairburn as a top future candidate.
Justice Fairburn has been studying French since early in her time on the appeal court. She is said to be very motivated and making great progress. But she is not yet believed proficient enough to pass the federal fluency test. Candidates are being told that, at a minimum, they should be able to read materials and understand oral arguments without the need for translation or interpretation in French and English.
Thus, Justice Fairburn continues studying, and is believed to be waiting for the Moldaver vacancy to apply.
Replacing a man with Justice Fairburn the next time could allow the Prime Minister, if he remains in power, to replace Justice Abella with a man, while ultimately preserving the 5:4 gender ratio. If Justice Fairburn has an inside track to the next appointment, the current opening could be the last real chance for years to choose a racialized minority or Indigenous judge.
It is a young court. The next mandatory retirement after Justice Moldaver’s date is not until 2028.
Applications closed on April 2. Under the process created by the Liberals in 2016, an independent, seven-person advisory board chaired by former Progressive Conservative prime minister Kim Campbell creates a short list of three to five candidates for the Prime Minister to choose from. The board has six women and one man, and includes one Black member, and one Métis member.
The government has promised to fill the vacancy in time for the court’s fall session.
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