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Ontario has many Supreme Court-worthy jurists but top-notch bilingual woman may have inside track

Friday, May 06, 2022 @ 2:28 PM | By Cristin Schmitz

More than a handful of outstanding lawyers and judges could potentially fill the Supreme Court of Canada’s impending Ontario vacancy — including racialized and Indigenous jurists — but the signals from the Liberal government suggest the preferred appointee will be a bilingual woman this time around.

Applications close by end of day May 13 for the Ontario spot that opens up when Justice Michael Moldaver retires Sept. 1, so it remains to be seen how many will apply for this vacancy, for which the government said it is seeking a jurist of the “highest calibre, functionally bilingual, and representative of the diversity of Canada.”

Federal Justice Minister David Lametti told a parliamentary committee last year that achieving “gender parity” on the Supreme Court’s six-man/three-woman bench remains an “overarching priority.”

Ontario Court of Appeal Justice Julie Thorburn

Ontario Court of Appeal Justice Julie Thorburn

Prime Minister Justin Trudeau’s avowed commitment to reconciliation with Indigenous peoples also suggests he could appoint Canada’s first Indigenous Supreme Court of Canada judge — a long sought development and one that Kim Campbell, the chair of the independent committee that advised the prime minister for four previous Supreme Court appointments, has predicted will happen “soon.”

As for other possible considerations, members of the bar and bench in at least some quarters are pressing the government to appoint a criminal law expert to succeed Justice Moldaver, given the major role he plays in an area of the law which constitutes nearly half the top court’s docket.

Opinion on that score is divided, however, including within the criminal law bar, with some pointing out that the top court can already draw on the expertise of Justice Sheilah Martin, the ex-University of Calgary law dean who practised and taught criminal law, in addition to presiding over criminal trials.

Toronto’s John Struthers, president of the Criminal Lawyers’ Association, told The Lawyer’s Daily it “would make sense” for the appointee to have expertise in criminal law. “It’s a very complicated, detailed and fractious area of the law,” he observed. “But I, at the same time, think it’s more important to ... have somebody with kindness, empathy and respect for the Charter, than it is anything else.”

Paul Cavalluzzo of Toronto’s Cavalluzzo, a leading labour and employment lawyer, said “from my perspective, what is needed is someone who is strong in public law, particularly the Charter of rights.”

Ontario Court of Appeal Justice Jill Copeland

Ontario Court of Appeal Justice Jill Copeland

“We’ve lost Justice [Rosalie Silberman] Abella, who was a key person in respect of the Charter, as was [former] chief justice [Beverley] McLachlin,” Cavalluzzo elaborated. “As a result of those losses, I think it’s crucial that we have someone that is expert, experienced and has a facility with, the application and interpretation of the Charter of rights, [and] other areas of public law, particularly the review of administrative agencies and administrative tribunals.”

The prime minister will pick from a short list of three to five candidates generated by the non-partisan Independent Advisory Board for Supreme Court of Canada Appointments, chaired by former P.E.I. premier and law dean Wade MacLauchlan, and comprising three people nominated by Lametti, along with three practising lawyers nominated respectively by the Canadian Bar Association, the Federation of Law Societies and the Indigenous Bar Association (IBA), as well as a retired superior court judge nominated by the Canadian Judicial Council, and a legal scholar nominated by the Council of Canadian Law Deans.

Once the shortlist is finalized, the government says Lametti will consult with Chief Justice of Canada Richard Wagner, “relevant provincial and territorial attorneys general,” relevant cabinet ministers, opposition justice critics, as well as members of both the House of Commons Committee on Justice and Human Rights and the Senate Committee on Legal and Constitutional Affairs.

The board will have consulted as well with representatives of the bench and bar, and with Chief Justice Wagner with respect to the court’s institutional needs. The government says it will fill the vacancy in time for the Supreme Court’s fall session.

Ontario Superior Court Justice Michelle O’Bonsawin

Ontario Superior Court Justice Michelle O’Bonsawin

In addition to the impeccable legal credentials and experience, good character and sound judgment demanded of a Supreme Court judge, a judicial philosophy that does not clash with the incumbent government’s progressive leanings, and its approach to criminal law policy and reform, will likely play into the prime minister’s decision.

Input from Deputy Prime Minister and Finance Minister Chrystia Freeland (the daughter of lawyers) and Public Safety Minister Marco Mendicino, an ex-federal Crown, who both represent Toronto ridings, is likely to be influential.

Discussions with eight members of the bar and bench contacted by The Lawyer’s Daily indicate that the potential contenders for this vacancy hail not only from the usual recruiting ground, i.e. the Ontario Court of Appeal, but also from the Federal Court of Appeal, as well as the Federal Court and Ontario Superior Court.

Those suggested as potential Supreme Court candidates include Associate Chief Justice of Ontario J. Michal Fairburn, Ontario Court of Appeal Justices David Paciocco, Julie Thorburn, Gary Trotter and Michael Tulloch, as well as very recent appointees to Ontario’s top court, Justices Jill Copeland, Lise Favreau and Jonathan George. (Others were mentioned as Supreme Court-worthy, but thought unlikely to apply for various reasons, including their age, newness to the appellate bench or reluctance to move to Ottawa. Any glaring omissions in this list reflect the scope of this article and not the merits of unmentioned jurists.)

Suggested possibilities from other courts included Federal Court Justices Sebastien Grammond and Catherine Kane, Federal Court of Appeal Justice Anne McTavish, Ontario Superior Court Associate Chief Justice Faye McWatt and Ontario Superior Court Justice Michelle O’Bonsawin.

Federal Court Justice Sébastien Grammond

Federal Court Justice Sébastien Grammond

University of Victoria law professor John Borrows, who is a member of an Ontario First Nation, was also cited as a possible candidate — although it remains a question whether Borrows can meet the government’s baseline eligibility requirement for Supreme Court appointment of “functional bilingualism,” i.e. being able to read and understand (and preferably also converse) in French without interpretation or translation.

(Having reached out to multiple sources, The Lawyer’s Daily ascertained that Justice George is not functionally bilingual, but did not ascertain whether Borrows and Associate Chief Justice Fairburn, who both have been studying French, are currently functionally bilingual, nor whether Ontario Superior Court Associate Chief Justice McWatt can hear cases in French. Justice Tulloch has also studied French but does not hear cases in French.)

Judges who can hear cases in French without interpretation include Justices Thorburn, Copeland, McTavish, Grammond and O’Bonsawin.

Sources also confirmed that two of the country’s leading thinkers and writers on criminal law, Justices Paciocco and Trotter, are not functionally bilingual and hence are presently ineligible for the top court. 

“I think that is unfortunate,” remarked retired Ontario Superior Court Justice Colin McKinnon, who also pointed to Ontario Associate Chief Justice Fairburn as a stellar candidate for the Supreme Court.

“Any of those three would be spectacular appointments, and I fear that none of them might qualify because of the requirement for functional bilingualism,” said McKinnon, an ex-president of the Ontario Superior Court Judges Association and a former Ottawa civil and criminal litigator.

John Borrows, University of Victoria

John Borrows, University of Victoria

“I think the prime minister really made a strategic error with the ... insistence on functional bilingualism,” McKinnon explained, “because I think it forecloses about 90 per cent of the best and the brightest candidates for that court [across the country], including Indigenous candidates.”

The IBA, which has pressed for years for the appointment of an Indigenous jurist to the top court, continues to argue that the Trudeau government’s insistence on appointing only bilingual jurists who can function in French has been a major stumbling block. (Murray Sinclair, the former chair of the Truth and Reconciliation Commission (TRC), and former Assembly of First Nations National Chief Perry Bellegarde have both publicly complained that the requirement to be functional in French creates an unfair barrier for Indigenous candidates, particularly those who have been concentrating on acquiring their own Indigenous languages that the Indian residential schools tried to stamp out for more than a century. However, the functional bilingualism policy garners wide support, including from the NDP and Bloc Quebecois which supported an NDP private member’s bill in 2010 that would have legislated the bilingualism requirement for Supreme Court appointees.)

Having been accorded a seat on the advisory board which will solicit and screen the applicants, interview the main candidates, and provide a shortlist to Trudeau, the IBA is currently encouraging Indigenous jurists to apply for the Ontario spot, said its president, Drew Lafond of MLT Aikins in Saskatoon.

Lafond said his approximately 400-member association will be pushing the government to soften its insistence on French as a prerequisite to appointment, as well as the government’s stipulation that the appointee must be an Ontario jurist via bar membership, judicial appointment, “or other relationship with the province of Ontario.”

“The regional representation factor, the bilingual factor, are only [among] a number of factors that need to be considered in appointing a judge,” Lafond said. “I think of key importance — in this case a paramount factor that should be considered — is whether a judge is Indigenous and has the ability to provide representation on the court, and speak to the importance of Indigenous laws,” he said. “There hasn’t been an Indigenous judge to serve on the Supreme Court in its entire history, which is problematic because Canada’s constitutional framework is premised upon three legal foundations: common law, civil law and Indigenous laws. And to enable the Supreme Court of Canada to decide precedent-setting matters, many of which have lasting impacts on Indigenous peoples and the evolution of Indigenous laws in Canada, without the participation of an Indigenous judge, I think undermines the credibility of the Supreme Court.”

(Two-thirds of the jurists who applied for the last Supreme Court of Canada vacancy, filled by ex-Ontario Court of Appeal judge Mahmud Jamal in 2021, were Indigenous, or members of visible minorities. That five Indigenous jurists and seven self-described members of a visible minority applied marked the first time, under the revised application process initiated by the Liberal government in 2016, that racialized jurists made up the bulk of applicants vying to reach the pinnacle of the court system.)

Below are some of the potential candidates for the Supreme Court’s impending vacancy, based in part on information taken from their published bios:

  • Internationally acclaimed University of Victoria law professor John Borrows, who teaches constitutional law, Indigenous law and environmental law, earned two doctorates, and is as seen as Canada’s pre-eminent legal scholar and a global leader in the field of Indigenous legal traditions and Aboriginal rights. His work has been cited by the Supreme Court of Canada and influenced the TRC , as well as shaping the public discourse on reconciliation. He is Anishinabe/Ojibway and a member of the Chippewas of the Nawash First Nation in Ontario.

  • Bilingual Justice Jill Copeland was only appointed to the Ontario Court of Appeal in March after spending five years on the Superior Court and three years on the Ontario Court of Justice where she presided over cases in both French and English. Formerly an executive legal officer to former chief justice McLachlin, she is described by several lawyers as a potential “dark horse” candidate because of her strong track record, which includes practising criminal, constitutional and administrative law for 19 years with Ruby & Edwardh and Sack Goldblatt Mitchell LLP, and acting as counsel to the College of Physicians and Surgeons of Ontario.

  • Ontario Associate Chief Justice J. Michal Fairburn, frequently mentioned as a star candidate for the Supreme Court of Canada, worked for more than 20 years as a Crown counsel, and then general counsel, in the Ontario Ministry of the Attorney General. In 2013 she practised with Stockwoods LLP before her 2014 appointment to  the Superior Court of Justice in Brampton, Ont. She was elevated to the Court of Appeal 2017 and promoted to associate chief justice of Ontario in September 2020.

  • Bilingual Ontario Court of Appeal Justice Lise Favreau hears cases in French. She joined the Appeal Court last December, after nearly five years as a Superior Court judge in the Toronto region. For her last three years on the Superior Court, she sat primarily on the Divisional Court where she was one of the team leads. She was counsel at the Ontario Crown Law Office – Civil from 2003 until she joined the bench in 2017. She became general counsel in 2015. Before becoming a Crown, she worked as a litigation associate and partner with Blake Cassels & Graydon LLP.

  • Ontario Court of Appeal Justice Jonathan George, described by the IBA as an “Ojibway of Pottawatomi descent and a tenacious voice for Indigenous Peoples throughout his career in legal practice,” joined the Ontario Court of Justice in 2012, the Superior Court in 2016 and the Court of Appeal in December 2021. In 2001 he joined Robbins, Henderson & Davis where he developed a criminal defence practice. On behalf of Ontario’s Office of the Children’s Lawyer, he also represented children in family and child protection cases, and he represented the Chippewas of Kettle & Stony Point in employment and child protection matters. He was the First Nation’s co-counsel in its negotiations with the federal government concerning the return of the Stoney Point Reserve and represented its interests at the Ipperwash Public Inquiry.

  • Before joining the Federal Court  in 2017, Justice Sébastien Grammond was a law professor and dean of the civil law section of the University of Ottawa. Formerly a law clerk to Supreme Court of Canada Chief Justice Antonio Lamer, he is a member of both the Ontario and Quebec bars. He is  fluently bilingual, holds a doctorate in law from Oxford and has written or co-written six books, including on Quebec contract law,  and many articles, with his main areas of research the legal recognition of Indigenous identity, Indigenous legal systems and contractual justice. He argued several major constitutional law and civil law cases before the Supreme Court of Canada and his pro bono advocacy led to a landmark judgment of the Canadian Human Rights Tribunal with respect to the discriminatory underfunding of child welfare services in First Nations communities, as well as legislative reforms in respect of child welfare, customary adoption and the rights of victims of sexual assault.

  • Federal Court Justice Catherine Kane, a criminal law expert,  joined the court in 2012 after 30 years, mostly with the federal Department of Justice, where she rose to senior general counsel and director general in the criminal law policy section, responsible for developing a wide range of criminal law reforms and managing a large team of legal professionals. She oversaw the reform of sexual assault offences and related sexual offences, the law governing persons found not criminally responsible on account of mental disorder, other reforms and program initiatives to address the role of victims of crime in the criminal justice system, including the establishment and expansion of the Policy Centre for Victim Issues in the Department of Justice.

  • Federal Court of Appeal Justice Anne Mactavish is bilingual, hears appeals in French and was appointed to the Appeal Court in 2019, after joining the Federal Court in 2003. She practised with Ottawa’s Perley-Robertson, Panet, Hill & McDougall from 1982 to 1996 and was appointed chair of the Canadian Human Rights Tribunal in 1998.

  • Ontario Superior Court Associate Chief Justice Faye McWatt, appointed to her current post in 2020, immigrated to Canada from Guyana in 1962. In 2000, she was appointed to the Superior Court where she has presided over criminal, family and civil law cases. Before joining the bench, she was a criminal lawyer, practising as an Ontario Crown, and then as a defence counsel and federal prosecutor of drug offences. She was counsel before various commissions of inquiry, including the Commission of Inquiry Into the Deployment of Canadian Forces to Somalia. She was a member of the Criminal Lawyers’ Association and the Canadian Association of Black Lawyers.

  • Fluent in French, Ontario Superior Court Justice Michelle O’Bonsawin is an Abenaki member of the Odanak First Nation Québec, and the first Indigenous judge named to the Ontario Superior Court in Ottawa. She is actively learning her Abenaki language. Before becoming a judge, she was general counsel at the Royal Ottawa Health Care Group and counsel at Canada Post. She practised mental health, labour, employment, human rights and privacy law, and has taught the course “Les autochtones et le droit” at the University of Ottawa.

  • Bilingual Ontario Court of Appeal Justice Julie Thorburn, who hears appeals in French, was seen as a prospect for the previous Supreme Court of Canada vacancy filled last year by Justice Jamal. She was appointed to the Appeal Court in 2019, after joining the Superior Court in 2006. Before her appointment to the Court of Appeal she was the team lead of the Divisional Court. Justice Thorburn co-authored the Report, “Améliorer l’accès a la justice en français” (2015) prepared at the request of the Attorney General of Ontario to improve access to justice for French-speaking litigants. She co-authored The Law of Confidential Business Information and is a contributing author of Digital Democracy, Policy and Politics in the Wired World, Ontario Courtroom Procedure (4th Ed.), 2016, and Canada Personal Information Protection and Electronic Documents Act.

  • Ontario Court of Appeal Justice Michael Tulloch was appointed to the Appeal Court in 2012, and the Superior Court in 2003. The first Black judge to be appointed to the Ontario Court of Appeal, he was born in Jamaica and came to Canada at age 9. A graduate of Osgoode Hall Law School, he served as assistant Crown attorney in Peel and Toronto and also practised criminal defence and acted as a federal Crown agent in prosecutions. As an Ontario Crown, he was one of three lawyers who created and implemented a charge-screening policy used in Ontario and other jurisdictions.

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