Applicants for SCC vacancy must be bilingual Westerners or Northerners

The prime minister’s office has announced an advisory board to select a new justice for the Supreme Court of Canada, to fill the vacancy that will be left when Chief Justice Beverley McLachlin retires in December.

“The Advisory Board will follow the Government’s new Supreme Court of Canada appointments process to identify jurists of the highest caliber who are functionally bilingual and representative of the diversity of our great country,” the PMO announced on Monday.

“In this instance, any qualified candidate from Western Canada or Northern Canada may apply,” in recognition of Chief Justice McLachlin having been appointed from the Supreme Court of British Columbia, a Western province. This also marks the first time that the North has been acknowledged in the custom of regional representation in the Supreme Court bench, according to the PMO’s announcement.

Last year the Trudeau government radically changed the way in which Supreme Court of Canada justices are appointed. Rather than being simply appointed by the prime minister, the government invited candidates to apply to fill vacancies on the country’s highest bench. The new process — through which qualified lawyers and persons holding judicial office in Canada may apply to the Independent Advisory Board for Supreme Court of Canada Judicial Appointments through the Office of the Commissioner for Federal Judicial Affairs — was launched last year as Justice Thomas Cromwell prepared to retire from the Supreme Court; Malcolm Rowe became the first SCC justice to be appointed by this process.

The seven-member Independent Advisory Board for Supreme Court of Canada Judicial Appointments includes four members who are: a retired judge nominated by the Canadian Judicial Council; two lawyers, one nominated by the Canadian Bar Association and the other by the Federation of Law Societies of Canada; and a legal scholar nominated by the Council of Canadian Law Deans. The other three members, including two non-lawyers, are nominated by the Minister of Justice.

The PMO identified the new advisory board as:

•    The Right Honourable Kim Campbell (Chairperson), a former Prime Minister of Canada and Canadian Consul General, and  the Founding Principal of the Peter Lougheed Leadership College at the University of Alberta, who likewise chaired last year’s advisory board;

•    Camille Cameron, Dean of the Schulich School of Law at Dalhousie University, and Chair of the Canadian Council of Law Deans;

•    Stephen Kakfwi, former Premier of the Northwest Territories and President of the Dene Nation, who is working to improve the recognition and realities of Indigenous Peoples within Canada;

•    Sheila MacPherson, President-elect of the Federation of Law Societies of Canada, a senior lawyer in Yellowknife and the Law Clerk of the Legislative Assembly of the Northwest Territories;

•    Lili-Anna Pereša, President and Executive Director of Centraide of Greater Montréal;

•    Richard J. Scott, former Chief Justice of the Manitoba Court of Appeal, and a counsel, arbitrator and mediator in the Winnipeg law firm of Hill Sokalski Walsh Olson LLP;

•    Susan Ursel, a partner at Ursel Phillips Fellows Hopkinson LLP in Toronto, and Chair of the Canadian component of the African Legal Research Team, which provides legal research support to Envisioning Global LGBT Rights.

Under the new process, functional bilingualism is now a requirement for a seat on the country’s highest court. As for regional representation, in the search last summer to replace Justice Cromwell (who was appointed to the Supreme Court of Canada from the Nova Scotia Court of Appeal), the government indicated that an appointment from Atlantic Canada was preferred but not required.

This time around, candidates “may demonstrate that they satisfy the geographical requirement by reference to their bar membership, judicial appointment, or other relationship with Western Canada (British Columbia, Alberta, Saskatchewan and Manitoba) and Northern Canada (Yukon, Northwest Territories and Nunavut)”, suggesting that regional affiliation is now required but may be loosely defined -- for example, it may include jurists who formerly practised in the West or North.