CBA says it’s ‘unfortunate’ top court starting busy fall session shorthanded one judge from West

Law360 Canada (October 11, 2023, 2:08 PM EDT) -- As a shorthanded Supreme Court of Canada commenced its new session packed with weighty constitutional appeals, Canadian Bar Association (CBA) president John Stefaniuk told Law360 Canada the Western vacancy opened by Justice Russell Brown’s departure last June should be filled by the Liberal government “as soon as practicable, in keeping with the appointment process that’s been established.”

“It’s unfortunate that the court isn’t up to its full complement because it has a lot of work to do,” remarked Stefaniuk of Winnipeg’s Thompson, Dorfman Sweatman LLP, noting that the court is taking longer than usual to render reserved judgments in some of its cases. 

(The Supreme Court currently has 16 appeals under reserve, with 11 cases under reserve longer than the approximately six months, on average, the court generally takes to decide, including one reserved appeal that is a year old. It has handed down 19 written judgments so far in 2023.) 

“It’s also important to have a full complement on the court in dealing with the important constitutional and other matters that the court has before it on a regular basis, not only in terms of sharing the workload among the members of the court, but also in terms of having the considered opinions of the various members of the court in determining these complex and important issues,” Stefaniuk said, as the top court sat Oct. 11 with only seven judges on an important language-rights criminal case from British Columbia.

In its busy fall session the Supreme Court is hearing more than two dozen appeals, including constitutional cases that involve novel high-stakes treaty issues as well as appeals seeking Charter relief for employer surveillance, secret court proceedings and damages for the impact of unconstitutional laws.

Stefaniuk said the CBA “has consistently expressed the position to the minister of justice, and to government in general, about the importance of filling judicial vacancies in a timely manner, in accordance with a transparent process. We understand that candidates have been identified through the process for judicial selection for the Supreme Court of Canada, and we look forward to the conclusion of the process and the appointment of a new member of the court from among the recommended candidates.”

Prime Minister Justin Trudeau is expected to nominate a Western- or Northern-based jurist to replace Alberta’s Brown, who resigned from the bench June 12 in the midst of a judicial council investigation into alleged misconduct, which the judge denied.

Trudeau invited applications for the ensuing vacancy June 20, 2023, with an application deadline of July 21, 2023. The prime minister did not, however, name until three weeks later, on Aug. 11, the eight-person “independent advisory board” that he tasked with devising a short list of three to five qualified Supreme Court candidates — despite the federal government knowing that Supreme Court advisory boards have said it takes them at least six weeks to produce a recommended short list.

Law360 Canada asked Supreme Court of Canada Chief Justice Richard Wagner, who had hoped to see a new judge in place by the start of the fall session, about the impacts of the ongoing vacancy on the court’s work.

“The chief justice remains optimistic that the prime minister will promptly exercise the necessary care and consideration in appointing a new justice of the Supreme Court of Canada,” replied Stéphanie Bachand, Chief Justice Wagner’s chief of staff and the court’s executive legal officer.

“Until such time as we do welcome a new judge, it’s business as usual,” Bachand said by email. “The court will continue to hear cases with a panel of five or seven judges, as it has done since February 2023 [when Brown was put on a leave of absence], and as it does often, even when there is a full complement of judges.”

The Liberal government did not answer Law360 Canada’s questions about why the delay in naming a new Supreme Court judge, and when will a successor to Justice Brown be named. “Following the completion of the [advisory] board’s work, a nominee will be announced by the prime minister in due course,” Irfan Mian of the Privy Council Office responded by email.

Eugene Meehan of Ottawa’s Supreme Advocacy LLP, a leading Supreme Court of Canada agent and former executive legal officer of the top court, said the court sitting seven or five judges on all appeals is not ideal for litigants. “The problem with sitting seven, in a 4:3 split, clients will reasonably ask, if I had nine judges, would I have won 5:4?”

“Winning baseball teams play with nine, not eight,” Meehan remarked. “No coach would let that happen. A coach that did would get fired.”

As four months have passed since the vacancy opened up, he queried why the federal government has not been able to name a new judge in that time.“There are lots of solid candidates, what fighter pilots call a target-rich environment,” Meehan suggested.

Court watchers have pointed out that the pool of potential candidates from the West and North has been narrowed by the federal government’s requirement that all applicants for the top bench must be functionally bilingual in French and English.  

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