Mr. Chair, members of the committee and Minister, good morning.
It is a great honour to serve as chairperson of the Independent Advisory Board for Supreme Court of Canada Judicial Appointments.
It is also an honour to appear before this committee this morning.
I am here as chair of an impressive and dedicated group of Canadians who served with me as members of the independent advisory board for nominations to the Supreme Court of Canada. The other seven members of the independent advisory board include
the Honourable Louise Charron, former justice of the Supreme Court of Canada, nominated by the Canadian Judicial Council, and Jacqueline Horvat, nominated by the Federation of Law Societies of Canada.
I might add that during the course of our advisory board work, Ms. Horvat was elected treasurer of the Law Society of Ontario. That's just a reminder that the board members had other things on their plates as well as this important work.
Dr. Richard Jochelson, dean of the Faculty of Law at the University of Manitoba, was nominated by the Council of Canadian Law Deans.
David Nahwegahbow was nominated by the Indigenous Bar Association. I might add that during the course of our work, Mr. Nahwegahbow was awarded an honorary Doctor of Laws by the Law Society of Ontario during its June 22, 2022, call to the bar ceremony.
Paulette Senior, CEO of the Canadian Women's Foundation, was nominated by the Minister of Justice.
Konrad Sioui, former grand chief of the Huron-Wendat nation, was nominated by the Minister of Justice.
Charlene Theodore, formerly president of the Ontario Bar Association, was nominated by the Canadian Bar Association.
The members of the independent advisory board all brought to our work a background of professional accomplishment and a vast array of experience. What's more, they brought a profound commitment to the rule of law, the institutional significance of the Supreme Court of Canada and the best interests of our country and all Canadians. We worked diligently, with considerable commitment of priority and time in working and studying and deliberating together. I might add that we enjoyed working together.
The mandate of the independent advisory board is to propose suitable candidates for appointment to the Supreme Court of Canada. Those candidates are jurists of high calibre who are functionally bilingual and representative of Canada's diversity. The process that just concluded was open to candidates from the province of Ontario.
The ultimate task of the independent advisory board was to submit to the Prime Minister a report containing a short list of three to five highly qualified individuals.
The advisory board was the beneficiary of some very helpful guidance and wisdom. The Right Honourable Kim Campbell, who served as chair of the advisory board for the previous four Supreme Court nominations, was most helpful and encouraging from the earliest stages of the process, offering wisdom and insights based on her experience. The Right Honourable Richard Wagner, Chief Justice of Canada, met with our advisory board early in the process to discuss the institutional needs of the court and the role and demands of a Supreme Court justice. Throughout our work, the advisory board was supported by the Commissioner for Federal Judicial Affairs and his accomplished and dedicated staff.
When it comes to filling a position on the Supreme Court of Canada, the first task is to get the word out. On the face of things, that seems rather obvious. Some might wonder why it would be necessary. Justice Michael Moldaver announced in late February that he would retire on September 1, after 11 years on the Supreme Court of Canada and a total of 32 years as a judge. Most interested observers would have known that Justice Moldaver will turn 75 in December.
The point about getting the word out is not so much to give notice but to set in motion networks of encouragement. Lawyers and jurists who are highly qualified in a way that makes them contenders for appointment to the Supreme Court of Canada are not in the habit of applying for a job. They may need an encouraging nudge from colleagues. They will need to talk it over at home to weigh family considerations, including what it means to move and to relocate to Ottawa.
They are required to complete an elaborate application, as you will have seen from studying the file of Madam O'Bonsawin. It delves deeply into their professional track record and experience as well as personal skills and qualities. They may be members of traditionally under-represented groups.
In the days following my appointment as chair of the independent advisory board and after the Prime Minister announced the launch of the selection process for the next Supreme Court justice, I wrote and sent letters to a wide variety of legal organizations and interest groups in the legal field.
I also wrote to the chief justices of the Ontario Court of Appeal, the Superior Court of Justice, the Federal Court of Appeal, the Federal Court and the Ontario Court of Justice.
I also followed up with phone calls to chief justices. These calls and letters were intended to create a culture of encouragement, not to seek out candidates or discuss specific candidates.
The deadline for submissions of applications was May 13. The other seven members of the independent advisory board were confirmed at about the same time. We had our first in-person meetings in Ottawa on May 19 and 20. Our report to the Prime Minister was completed on June 22.
This is an intensive process calling for much discernment and humanity in addition to dedicated preparation and time commitment. Of course, this is the case for the candidates who put their names forward as well as for independent advisory board members.
There were 12 applications. The independent advisory board opted to interview six highly qualified individuals. The interviews were extensive, giving candidates upwards of an hour to respond to questions about their experience, views and commitment to serving on the Supreme Court of Canada. The independent advisory board was especially interested to explore candidates' approach to collegiality, the workload of the court and issues of integrity, diversity and judgment. Our checklist of criteria for assessment included superior knowledge of the law, superior analytical skills, ability to solve complex legal problems, ability to work under significant time pressures requiring diligent review of voluminous materials in any areas of the law, and commitment to public service.
The personal qualities assessed included irreproachable personal and professional integrity; respect and consideration for others; ability to appreciate a diversity of views, perspectives and life experiences, including of groups historically disadvantaged in Canadian society; moral courage; discretion; and open-mindedness.
All candidates interviewed were functionally bilingual. The interviews were conducted in both official languages. Immediately following the interview, each candidate participated in an assessment conducted by the Office of the Commissioner for Federal Judicial Affairs to ascertain the candidate's understanding of written and oral arguments as well as to determine the candidate's ability to speak in both official languages. A report, including each candidate's assessment score, was provided to the independent advisory board.
The independent advisory board pursued references for each candidate interviewed as well as discussions with chief justices. The interviews were conducted by IAB members who spoke directly to referees following a consistent format. The ultimate task of the advisory board is to draft and finalize a consolidated report.
From the beginning of this process to the end, there has been total respect for the need for confidentiality. A further commitment of the independent advisory board has been to treat every candidate who submitted an application with fairness, dignity and good grace.
The process involves considerable study, judgment and detailed consideration of the candidates in a space of just under six weeks. Without the total dedication of the members of the independent advisory board, including flexibility in their schedules, and the expert support of the Office of the Commissioner for Federal Judicial Affairs, this would have been exceptionally difficult. Despite this tight time frame, the independent advisory board fulfilled its mandate with the diligence, cooperation and judgment that this important process requires.
That said, anything that can be done to add a week or even two weeks to the time frame offered would be beneficial in future Supreme Court appointment processes.
In previous appearances before this committee, the Right Honourable Kim Campbell spoke about the desirability of having what she referred to as a broader conversation among people in the profession and the community about what is required to be a Supreme Court justice so that there's a greater knowledge of what is actually entailed.
In her 2019 appearance, Madam Campbell spoke about this in the context of building an environment that might encourage even more people to apply. She said:
I think, particularly for women, if they have families and are likely to have spouses who also have careers, this might be something that could overcome some reservations.
She also said:
If this were an ongoing conversation, as opposed to something that we scramble to do just in the face of an imminent departure from the court and the need to recruit a new candidate, I think it might be something that could broaden the scope of the candidates.
I concur with these comments and note that both Chief Justice Wagner and former chief justice Beverley McLachlin have taken significant steps to enhance the profile of the Supreme Court of Canada. In September of this year, the Supreme Court will sit in Quebec City, following the model of its first out-of-Ottawa hearings in Winnipeg in September 2019. All members of the court participate generously through speaking engagements and other public activities, such as the feature television interview given in June by Justice Jamal on the one-year anniversary of his appointment to the court.
Still, there is what I call an episodic quality to the appointment of a Supreme Court justice. Given the ages and stages of the current justices, it could be a number of years before the next vacancy. That in itself is not a bad thing. There has been considerable change in the membership of the Supreme Court over the past decade. The coming period could be a window of opportunity to enhance these networks of encouragement that I spoke about earlier in my remarks so that lawyers and judges have more time to consider what might be involved in being a candidate for a Supreme Court appointment when the opportunity arises.
The transparency and independence of this nomination process can only add to that environment of encouragement.
I will conclude with two remarks.
First, this process has resulted in the nomination of Justice Michelle O’Bonsawin, a highly qualified jurist who brings many gifts and talents to the Supreme Court of Canada, including as the first indigenous person to serve as a member of the court. This in itself is convincing proof that we are making progress in building an environment of encouragement and inclusion with impact extending well beyond the work of the Supreme Court of Canada.
My final remark is to say that it has been a truly uplifting experience to serve as chair of the independent advisory board. It has been an opportunity of a lifetime to work with the seven other members of the advisory board and our supporting team. We would all say that we treasure the collaboration, diligence and humanity that we have shared. It has been uplifting to get to know all of the candidates who came forward for this position.
We are extremely fortunate in this country to have a widely shared respect for the rule of law and for the Supreme Court of Canada as an institution. We are fortunate to have people of exceptional calibre who contribute in so many ways and in so many capacities to ensuring that this is the case and continues to be so, and ultimately, to serve Canadians.
The opportunity to appear before this committee today reinforces those values.
As I close, I'm going to refer to a note I got, one of the very first when I took on this task, from a former member of this committee, the Honourable Murray Rankin, who now serves in the Government of British Columbia. I've known Murray for many years.
He writes, “Dear Wade, I was delighted to learn of your new role in SCC judges selection. You're perfect for this vital role.” That's not why I'm reading it. He writes, “I was the NDP Justice critic for three appointments and I must say how proud I was as a Canadian of this process.”
I think that's a sentiment, Mr. Chair and committee members, on which I will close my opening comments this morning.
I look forward to an exchange through questions.