Prime Minister Justin Trudeau has a problem and opportunity as he prepares to make his fifth appointment to Canada’s Supreme Court, replacing Judge Michael Moldaver, who is retiring on September 1.
The problem is that Justice Moldaver is the leading specialist of the criminal court. Criminal appeals make up a large proportion of court cases – 55 per cent of cases heard in 2021. Judge Moldaver was once a leading criminal lawyer and then a judge. His decisions ring with conviction and nuances acquired during a life immersed in the intricacies of criminal law. And all this experience comes out the door.
Opportunity: Mr Trudeau may choose a judge who supports a broad, liberal approach to the interpretation of the rights protected by the Charter of Rights and Freedoms. The court is moving to the right under the supervision of Mr Trudeau, and Judge Moldaver was sometimes part of that diversion. Mr. Trudeau, whose father Pierre was the visionary behind the founding of the Charter, describes himself unequivocally as a pro-Charterist.
“The court is becoming more conservative,” said Toronto-based constitutional lawyer Paul Cavaluzzo. “This is a very important appointment to present a more progressive view.”
The deadline for applying to replace Judge Moldaver it was friday. The trial is open only to candidates from Ontario, which by convention has three members in the court. The Globe and Mail interviewed 10 members of the legal community and political insiders about the search process, but did not name them so that they could speak freely about the judges before whom they may one day appear.
Mr Trudeau is expected to appoint a woman. This will restore the 5-4 male-female ratio left by his predecessor, Conservative Prime Minister Stephen Harper. The terms of reference of the advisory body tasked with creating a short list of three to five names are explicit: the group must support the government’s intention to have a gender-balanced court.
If Mr Trudeau is looking for a lawyer with strong experience in constitutional law and a progressive background, plus experience in criminal law, Judge Jill Copeland of the Ontario Court of Appeals will be the leading candidate, two sources said. She has practiced criminal law and has presided over judicial proceedings at both the provincial and high judicial levels.
Judge Copeland was also the executive attorney from 2007 to 2010 for Supreme Court Justice Beverly McLaughlin, under whose leadership the court significantly expanded constitutional rights. And Judge Copeland was an employee of one of the most liberal Supreme Court judges of the Charter era, Peter Corey. Moreover, she can hear cases in both official languages.
Some controversy could be attributed to Judge Copeland because she released a man on bail last September after he was charged with first-degree murder in the death of a police officer who was run over by a car in the Toronto City Hall parking lot. The decision was criticized by Toronto Mayor John Torrey and Ontario Prime Minister Doug Ford. Most of the details in it are covered by a ban on publishing. She spent only a short time in the province’s supreme court, the Court of Appeal, after being promoted by the Trudeau government in March.
Her talent is to “see the really important issues, be able to assess and weigh them correctly – do the right thing, in other words,” said retired criminal lawyer Marlis Edward, who hired her as an art student and worked with her for several years.
If Mr Trudeau is looking for a general, the appellate court candidates include Judge Catherine van Rensberg, two sources said, and Judge Julie Thorburn. several sources said. The Thorburn Court has been ordered by the Ontario Attorney General to write a 2015 report on access to justice for French-speaking countries.
The easiest answer to Mr Trudeau’s criminal law problem may be Assistant Chief Justice Michal Fairburn of the Ontario Court of Appeal. Friends expected her to apply, but she did not, two sources said. As a royal lawyer for more than 20 years, she was considered one of the best appellate lawyers in the province. A senior lawyer called her Justice Moldaver with a friendlier face. (Judge Moldaver may be rude in hearings; Judge Fairburn won a courtesy award.)
The stumbling block was Mr Trudeau’s requirement for bilingualism. Judge Fairburn has been studying French for a long time, say two people who know her, but she has also dealt with difficult cases and administrative duties.
Appointments to the Supreme Court allow the legacy of a prime minister to live on. The mandatory retirement date for Judge Copeland, at the age of 75, will not be until 2043, while Judge Thorburn’s will be in 2037 and Judge Van Rensberg will be in 2033. Mr Trudeau is expected to do so. the appointment well before the next court hearing begins in the autumn.
In his last appointment to the Supreme Court, Mr Trudeau replaced a woman, Judge Rosalie Abela, with a man, Judge Mahmoud Jamal, leaving only three women in court. Judge Jamal, a Nairobi-born judge, became the first member of a racial minority group and the first representative of the Bahá’í Faith in the country’s most powerful court.
This time, other stated priorities of the liberal government, such as increasing racial diversity or appointing the first indigenous judge of the court, may come to the fore. A potential candidate is Judge Michael Tullock, a source who will be the first black member of the Supreme Court said. He is studying French, the source said, but is not on the appellate court’s list of 10 judges hearing appeals in French. (Nine out of 10 are women.)
The Indigenous Bar Association, or IBA, supports two indigenous candidates, Ontario Supreme Court Judge Michel O’Bonsau of Ottawa, a 2017 judge, and Ontario Supreme Court Justice Todd Ducharm of Toronto, who joined to this court in 2004. Both speak freely. bilingual.
“They understand the plight of the indigenous people,” IBA President Drew Lafond, a Saskatchewan-based lawyer, said in an interview. “They carry this life experience and want to bridge the gap between indigenous people’s perceptions of justice and the way the judiciary has treated indigenous peoples in the past. And we see them as extremely well qualified for the position. “
A potential candidate for a dark horse is Cynthia Peterson of the Ontario Supreme Court, a source said. She has small liberal qualifications as a former defender of social justice. The same source said Natalie de Rosiers, director of the College Massi and a former dean of law, chief adviser to the Canadian Civil Liberties Association and a liberal member of the Ontario legislature, has applied, giving the prime minister another option on the left.
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