Independent advisory board to help select new SCC justice named

Things are moving ahead in the process to replace Supreme Court of Canada Justice Sheilah Martin.

With her retirement fast approaching at the end of the month, Prime Minister Mark Carney has announced the eight-member independent advisory board tasked with evaluating applications for the position.

A release from PMO says members were selected for their “expertise, integrity, and distinguished service across Canada’s legal, academic, and public institutions.” The board brings together diverse perspectives, including regional and linguistic representation. Lawyer Maureen McTeer, the wife of former prime minister Joe Clark, is chairing it.

Gerard Kennedy, a law professor at the University of Alberta, says she’s an interesting choice for the role.

“The previous panels were chaired by a former prime minister or a former premier, both of whom were lawyers,” he says.

“McTeer is obviously a prominent lawyer, a prominent Progressive Conservative, which is somewhat on-brand for Carney, but is an interesting and very qualified person to choose.”

The rest of the advisory board includes a law professor, a law dean, Indigenous representation, members of the bar from various provinces, and the former chief justice of Nova Scotia.

“It’s on-brand for how these things have worked since 2016,” Kennedy says. 

“There is nothing tremendously shocking or novel about it.”

The board lacks a prominent criminal law voice, which he says is a fair critique of its composition.

Sajeda Hedaralay, an associate with McCarthy Tétrault LLP in Montreal and a member of the CBA’s judicial issues committee, says the board represents the balance necessary on an independent advisory committee.

“This committee is a great step in ensuring that the appointment process is non-partisan and not overly political,” she says. 

“It’s a good process, but it can always be improved.”

Given that the Supreme Court hears cases from all areas of law, Hedaralay is less concerned by the advisory board’s lack of criminal law representation. She says its job is to come up with a short list in a non-partisan way.

Kennedy says the late announcement of the board, which comes less than two weeks before Martin’s retirement date, and nearly a month after applications for the post stopped being accepted, could be a result of the uncertainty around Parliament’s stability before the Liberal government reached a majority status. This being Carney’s first Supreme Court appointment, he’s still figuring out how these things work.

Hedaralay is confident the seat will be filled in time for the start of the Court’s fall session, which will be in September or October. 

She says, given that the CBA always seeks the most transparent and non-partisan process possible, the next step toward that for future committees and appointments is to continue addressing systemic barriers and boosting recruitment. Alleviating resource pressures is also key to help protect judicial independence.

Kennedy notes that while the current selection process is more transparent than the previous system of a tap-on-the-shoulder, he would hope to see a breakdown of how many applications were received, from which provinces or territories, and what level of judicial experience the applicants had, even if their identities remain secret.

“It would be good to know that there has been a short-list of x-number of people given to the prime minister,” he says. 

“Last time, the panel was told to give three to five names, but it’s a very open secret that they only gave two. That was very questionable, and if that were to happen again, we could have a discussion about why we’re having so few names put forward for such a position.”

The criteria of functionally bilingual applicants from Western Canada who are willing to move to Ottawa and have the necessary experience to be on the Supreme Court is not going to be a long list, Kennedy notes. Still, it’s worth knowing how many people are on it. If it’s too small, it might prompt a reconsideration of the criteria.

University of Calgary law professor Jennifer Koshan was pleased to see her faculty dean, Laura Spitz, on the advisory board.

“Some of us knew her as Dean Martin, so this seems like a full circle moment,” she says.

The Independent Advisory Board includes:

• Maureen McTeer (Chair)
• Riel Bellegarde
• Aimée Craft
• Justin E. Kingston
• Marie-Pierre Lavoie
• The Honourable J. Michael MacDonald
• Justin Robichaud, K.C.Laura Spitz