The Decibel - Who is Canada’s new Supreme Court justice?

Episode Date: October 31, 2023

The Supreme Court has been missing a judge ever since Russell Brown resigned in June over allegations of improper conduct. On Oct. 26, Trudeau announced his nomination to replace Justice Brown – Mary Moreau, the Chief Justice of the Alberta Court of King’s Bench.With this pick – Trudeau’s sixth – the Supreme Court of Canada becomes majority women, for the first time. The Globe’s justice reporter Sean Fine joins us to talk about what Moreau will bring to the court, and why it might have taken so long to fill the seat.Questions? Comments? Ideas? Email us at [e-mail]

After months of a vacancy on Canada's Supreme Court, following a surprise resignation, the position has finally been filled. The Prime Minister has nominated Judge Mary Moreau to sit on the country's top court. She's replacing a right-leaning justice, Russell Brown, and her rulings in the years to come will have significant impacts for Canada.

Today, I'm speaking with The Globe's justice writer, Sean Fine. He'll give us a sense of Moreau's leanings, why her nomination took so long, and what our Supreme Court looks like now that Trudeau has appointed six of our nine justices. I'm Maina Karaman-Wilms, and this is The Decibel from The Globe and Mail. Sean, thanks so much for joining me again. Thank you for having me once again. So Trudeau has just nominated a new judge to the Supreme Court. Who is Mary Moreau? I guess the first thing to know about her is she is a proud Franco-Albertan. Her family came there a couple of generations ago. Her mom is actually an

Anglophone. She's one of eight children, and she was a middle child. And I'm told that that has helped her deal with people. And as the Chief Justice of the Court of King's Bench in Alberta, she had a lot of judges under her over the years 80 to 90, so her interpersonal skills would have come in handy. She is a married mother of four. Her children are now adults. Her husband is among the most famous criminal lawyers in Alberta, Peter Royal, now retired. She's been on the court for close to 30 years, and I'm sure it was not an easy job, but at the same time, she was probably able to contain her hours a bit better than if she'd been a practicing lawyer. What about her political leanings? What do we know about her on that front?

We know that on criminal law, the criminal lawyers love her. So that says to me that she's a very liberal judge, small l liberal in that sense. She's said to be very creative in how she, at least in listening to arguments and accepting certain arguments from the criminal law bar, and also in applying principles for Indigenous peoples in sentencing to try to look at their background. But in a broader sense, we don't know that much because she is on what is called a trial court in the legal hierarchy. That is not the highest court. The appeal courts are. And in appeal courts, you see how judges handle constitutional questions. I mean, you see that to

an extent on the trial courts as well. But she has filled in from time to time on appeal courts, but did not write any rulings there. So what we know of her leanings are kind of scant. But I just interviewed someone who has worked with her extensively for the last 20 years, who said that she's not expected to be a conservative judge like Russell Brown, the judge she replaces. On the other hand, she's not expected to be an activist, as people like to say, pushing the bounds of law. She will work for change, but within existing structures. And I think we see that in her career as a lawyer and as an administrative judge, pushing for greater rights, say, for French-speaking litigants. Okay. So, yeah, I guess, are there specific things from her background as a lawyer and a judge, Sean, that we can point to that kind of illustrate these things about her or how she might decide things?

Yeah, there are a couple of things. So an early case she had as a lawyer was an accused man is a cocaine trafficking case. And he wanted a trial in French in front of a French jury. And at the time, that right didn't clearly exist in Alberta. And so she pushed for it. And she went through six years of cases at four levels of court, ending at the Supreme Court where she won. So that made an important change in Alberta. And it also drew a lot of attention to her in the area

of minority language rights. And that became a big field for her. There's another case of Omar Cotter. You may remember him. He was a 15-year-old who, I guess his family, they were a major terrorist family in Al-Qaeda, his father. And he was brought to Afghanistan at 11. At age 15, he was accused by the Americans of shooting one of their soldiers in the eye, blinding him. And the Americans jailed him at Guantanamo Bay for many years. Eventually, he was convicted there and brought back to Canada by agreement and put in jail here. And then he was released on conditions. And here we're getting to the point that he reaches Mary Moreau's court. He was out for four years on very strict conditions, and then he applied to be released from those conditions.

And she said, you know, you're right. You've been on strict conditions. You have not violated those conditions. I'm going to give you just one more day of those conditions. Well, Omar Khadr was a red flag for the Conservative Party federally and for much of Canada. So she took the point of view that he deserved to be released from that. And she was very proud of that ruling. And in fact, it is in her application form. She put it down herself, showing how she deals with complicated, nuanced topics. Okay. So that kind of gives us a sense of the way that she's dealt with things in the past. Maybe that gives us some sense of how she might deal with things in the

future as well. I want to ask you about a point that you brought up a little bit earlier here, about the fact that she was a trial judge as opposed to a the future as well. I want to ask you about a point that you brought up a little bit earlier here, Sean, about the fact that she was a trial judge as opposed to a court of appeal judge. I guess what does that mean exactly and why is that significant? Okay, so trial courts hear evidence. They hear the facts of a case and then they apply the law to the facts. And the appeal courts don't hear the evidence. They, in most cases, defer to the trial court's judgment of what the facts were. Then they look at the law and whether the trial judge interpreted the law

correctly and applied it correctly to the facts. So they're looking at the ruling that happened in the trial court then? Yeah. So they don't hear the evidence, mostly. They rely on the trial judges for that. And they hear arguments. A lawyer will get up before the appeal court and say, here's what we think. And the appeal court judge might debate that with them, discuss it with them. There's a give and take. You don't see that in the trial courts. So as I say, in the legal hierarchy of Canada, the trial courts are a lower court, although some say chief justices of trial courts, like Justice Moreau, are the equivalent of appeal court judges. In any event, they don't have the record of views on how the Constitution applies often. And her record is kind of scant on that.

So is it uncommon then for someone from a trial court, from that lower court, to actually be appointed to the Supreme Court? It is. The last appointment, Justice Michelle Obonso and the first Indigenous appointee was from a trial court. But she was the first since the charter came into effect in 1982. But with Chief Justice Moreau being a chief justice, I think that makes it a little bit different. So do we know why that is? Like, why would the prime minister choose someone from a trial court? Why would he make that decision? Well, here we get to the process. Readers should understand that Canada

has a lot of traditions that are brought to bear on an appointment. So this appointment had to be from Western Canada. By convention, there are two judges at any one time from Western Canada. There are three by law from Quebec, three from Ontario, one from Atlanta, Canada. So we have that geographical diversity then essentially. Right, exactly. And the Prime Minister tried to change that when he first got into power in 2016 and had an appointment to make and the retirement had been from Atlantic Canada. He said, no, I'm opening this up to the whole country. And Parliament voted 270 to nothing to tell him, look, let's stick with the geographical diversity. Prime Minister Trudeau was very concerned about making the court more diverse along racial lines or gender and so on. And so in the end, he did appoint from Atlantic Canada. And in fact, he appointed the first judge from Newfoundland and Labrador, who turned out to be the most

conservative judge on the Supreme Court when it comes to charter cases. We at the Globe did a study on that. So now it comes to the West, the appointment to replace Russell Brown. So it has to be from the West. And also Prime Minister Trudeau put in a requirement that the judge has to be fluently bilingual in English and French. That is, they have to be fluent enough to hear a case in either official language. So very high level of bilingualism then. That's right. You can't go in and fake it. So it turned out that, from my research, that the two leading candidates who applied were two Francophones, Chief Justice Moreau and another Chief Justice, Glenn Joyal, who was from Manitoba

and in fact had been in appeal court before he moved to become Chief Justice of the trial court. And, you know, they both brought a lot of strengths and they both brought some, I think, demerit points from the prime minister's point of view. In Chief Justice Moreau's case, she is 67 years old. Now, nothing wrong with that. I'm not trying to be ageist, but there is a mandatory retirement date of 75 on the Supreme Court. So her runway is not very long. And I think prime ministers like to have a good long legacy, potentially, from their appointments to this court. For instance, Beverly McLaughlin was on the court for 28 years. And that was part of Brian Mulroney's legacy in Canada. He appointed her initially with Glenn Joyal, excellent judge, but he gave a speech in 2017 criticizing

Pierre Trudeau and making certain comments about the charter and Pierre that Justin might not have appreciated. So I always suspected that would be a hard sell. So those are the two finalists for this position. So I guess what you're kind of saying here, Sean, is that Trudeau didn't have a lot of options, essentially, because he had these strict requirements, had to be from the West, had to be bilingual. There just weren't a lot of people to choose from then. Yeah. And I called around and I was unable to confirm that anyone from any appeal court applied out West or on the Federal Court of Appeal. And most appointments, if you go back to 1982, I counted them up. The vast majority are from courts of appeal.

We'll be right back. We mentioned Russell Brown a few times here, so I think we should actually talk about him a little bit, Sean. Last time we had you on the podcast, we went in depth here because he was the judge, of course, who resigned after being accused of improper conduct at an Arizona hotel earlier this year. He denied the allegations. But I think, Sean, it's important to look at the similarities or differences between Brown and Moreau because she's essentially replacing him on the court. So how do Brown and Moreau's politics compare? Well, he was always a very conservative voice. When he was at the University of Alberta as a law professor, he kept a blog. And it was quite hilarious at times. He had

a very sarcastic, sardonic sense of humor, and he would take on people. He said something nasty about Justin Trudeau when he was still in opposition. He even criticized Beverly McLaughlin, then the Chief Justice of Canada. He criticized what he saw as sort of the conventional ways of thinking in Canadian law and politics. And he took these views forward to the Supreme Court. He was appointed by Stephen Harper, by the way, the last appointment. So in a number of different contexts, he could be quite conservative. For instance, when it came to the question of a law school at a Christian university, there was a question about whether that law school should be allowed to be qualified by the law societies because it essentially would not allow its gay students to be who

they are. They had to sign a certain covenant to not do certain things and so on. And he was one of two judges in that case who said the law school had the right or should have the right to exist under those rules. And everybody else said no. And I wrote in a story that he was viewed by some as the most powerful conservative voice on the court in decades. And with a couple of other conservatives on the court, that small C conservative, we're not talking about political partisanship here, I should be clear. They helped push the court to the right in certain ways and how they interpreted the Charter of Rights. And so he was influential.

Okay, so it sounds like she's not going to replace his political leanings exactly. It sounds like he was further right. She's a little bit more center left here. But we don't exactly know until we see her rulings as well. Exactly. And judges have in the past surprised people. But someone has described the Supreme Court to me as having a mushy middle. I mean, it's got a broad liberal center. So we've seen rulings in the past from the court where all judges came together, all nine of them, on very controversial topics like the right to an assisted, medically assisted death. And all nine of them said, yeah, that right is protected by the Charter of Rights. So it has been a very broadly liberal court for many years. And it was only in the last few years with Justice Brown and a couple of his colleagues that that began to be questioned. Of course, Russell Brown stepped down in June of this year. And Sean, we're talking in October now, the end of October. So is that a long time to go without a ninth judge on the court?

Well, it certainly took the prime minister a long time to make the appointment. So he had the summer. There were no hearings over the summer. And when Justice Brown stepped down on June the 12th, the Chief Justice, Richard Wagner, said immediately, publicly, that the Prime Minister has to get a process going. Because he'd been a judge short since February. Justice Brown was, in effect, suspended, although no one used that word. And so the court was operating shorthanded for quite a while. And he wanted to make sure that when the court started up in October, that they had the full complement. And sure enough, when the court started up again,

that was October the 11th or 12th, it still had only eight judges. So the prime minister, either because there was some kind of paralysis at the center, or because he couldn't make up his mind, did not appoint that judge until just now. Yeah. So what does the makeup of the Supreme Court look like now? So with Murrow, with this new nomination, I guess, how would you characterize the makeup of the court? Well, first of all, let's speak about gender. This is the first time that the Supreme Court of Canada has had a majority of women, five out of nine. Justin Trudeau has always been a big believer in making a statement, I think, through his Supreme Court appointments. He appointed the first Newfoundlander,

he appointed the first Indigenous judge, he appointed the first racialized minority judge. And now he's put women in the majority. And it's roughly four decades after his father named the first woman, Bertha Wilson, to the Supreme Court. So in a way, it's kind of a narrative there, a link with his dad. Just lastly here, so Trudeau has nominated Moreau. I guess what's the next stage of this process now? Because she's not quite on the court yet. That's right.

And I know I sounded like I took it for granted that she is. And that's because it is, in candidates, the prime minister and cabinet's prerogative to appoint a judge. So we talk about it in terms of her being nominated, but it's a virtual certainty. Unless something comes up at this hearing that will be held at which she will take questions on Thursday, then the prime minister will announce that she is now appointed. They're not exactly like the ones in the U.S. because there they need the Senate committee to ratify. Here, as I say, we don't.

But also they tend to be wilder affairs down there. They have five or six weeks to prepare. The hearings go on and on. Here our hearings last for roughly two hours. So questioners get about five minutes each. Yeah, that's drastically different than what we see in the U.S., right? It's a huge deal and it goes on for a really long time down there, but this is different. Yeah. And I think the thing that really shows how different they are is that the committee or parliamentary committee that's convened is chaired by a law professor,

each time a different one. And the law professor sort of lectures parent style to the people on the committee saying, here's what you're allowed to do. Here's what you're not allowed to do. You can't ask about cases. You can't ask this. You can't ask that. And people try to push it too far. They're kind of scolded. And also, we have a tradition of such respect for our Supreme Court judges that politicians are often unwilling to step outside of that. So hearings have been kind of tepid, but at the same time, you know, they're useful and interesting.

People, Canadians at large, get a chance to meet their judges. They're often televised one way or another. And, you know, I find them interesting and I hope others do too. So barring anything really unexpected that happens, Mary Moreau should pass this hearing, no problem, and then be on the court soon after then. That's right.

Sean, always great to talk to you. Thank you so much for being here today. Well, thank you once again for having me. A lot of fun. That's it for today. I'm Maina Karaman-Wells. Michal Stein helped produce this episode. Our producers are Madeline White,

Cheryl Sutherland, and Rachel Levy-McLaughlin. David Crosby edits the show. Adrian Chung is our senior producer, and Angela Pachenza is our executive editor. Thanks so much for listening, and I'll talk to you tomorrow.