To build a strong Supreme Court, we must look at the big picture

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David Butt is a Toronto-based criminal lawyer.

The appointment of Michelle O’Bonsawin, a bilingual judge who will be Canada’s first Indigenous Supreme Court justice, has sparked debate on how these positions are selected.

The objection has been made that Justice Michael Moldaver, the retiring judge, is a giant of criminal law. Criminal cases occupy a huge chunk of the court’s docket. Incoming Justice O’Bonsawin has nothing close to Justice Moldaver’s experience and insight as a criminal law jurist, so the court is now weaker.

Justice Moldaver does leave very big criminal law shoes unfilled. But the purist’s argument overlooks the broad array of considerations that must influence the choice of a Supreme Court judge. And it also overlooks the fact that bench-strength, not individual draft picks, is the key to a great Supreme Court.

Since by constitutional convention, there must always be three Ontario Supreme Court judges, Justice Moldaver’s replacement must be from Ontario. And if criminal law expertise is the sole selection metric, the choice easily comes down to three: Associate Chief Justice Michal Fairburn, Justice David Doherty and Justice Gary Trotter, all of the Ontario Court of Appeal, just one rung below the Supreme Court. Each is a criminal law guru. All three are brilliant, experienced judges. But two are unilingual white males, one is close to the mandatory retirement age of 75, and Associate Chief Justice Fairburn is reported as “learning French,” which would not fit the bilingualism requirement. So if they bothered applying, it was a waste of time.

In other words, a particular field of legal expertise is part, but not all, of what makes a good addition to the Supreme Court. In a body with such a public face and function, the entire country must see themselves on the court. That is not just clichéd window dressing, it is a justice imperative. A court’s authority in the public mind comes only from the power of persuasion, and a court cannot persuade nearly as well if its composition tells normal Canadians the judges have no clue about the realities of their lives.

The Canadian public is slowly becoming more conscious of the injustices of colonialism and its legacies, so it feels like an appropriate moment to place a talented Indigenous jurist on our highest court. Symbolism then becomes substance because the cultural voice of those whose oppression and dehumanization was historically sanctioned by the law itself is now heard in the chorus of the law emanating from the Supreme Court.

But what about the loss of Justice Moldaver’s criminal law expertise? There are nine judges for a reason. Collective wisdom is a better guide through the legal thicket than solitary genius. And those nine are aided in the quest of justice by the guiding power of precedent. Justice Moldaver, and many other brilliant judges before him, wrote insightful decisions that help enormously in setting the tone for decisions to come. Further, each judge has four law clerks: law-school gold-medalist types hired for their legal brilliance and unbridled studiousness to help analyze cases and craft decisions. So every private discussion inside the court is a seminar of the legally gifted set. Largely unacknowledged, the institutional presence of these whip-smart law clerks deepens the court’s bench strength.

Bench strength is also built outside the court. Cases don’t magically arrive there as questions of first impression. They climb the judicial ladder carefully to the top rung. Along the way, lower court judges weigh in, lending insight to each debate the Supreme Court must resolve. Lawyers arguing before the Supreme Court likewise play an important role. Crafting durable solutions to legal problems is a responsibility that weighs heavily on Supreme Court lawyers, and many of their arguments end up in Supreme Court judgments.

Other key builders of knowledge outside the court are legal academics. Their research-based analysis of legal problems and trenchant criticisms of legal judgments help build a great court. Supreme Court judgments are full of footnotes and quotes acknowledging the power of academic analysis. No judge wants to see their reasoning publicly eviscerated in legal academic journals.

None of this means the quality of Supreme Court appointments doesn’t matter. But “quality appointments” is a phrase with many meanings. And when some meanings get more emphasis than others from time to time, the court can adapt and draw on its own other strengths and the strengths of the greater legal community.

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