House of Commons Standing Committee on Justice and Human Rights – Nomination of the Honourable Mahmud Jamal to the Supreme Court of Canada

• Previous Page
• Table of Contents
• Next Page

Qs & As – Supreme Court of Canada Appointments Process – 2021

• Nominee and shortlist
  • Q 1 What was it about the nominee that made him stand out in comparison with other candidates on the shortlist?
  • Q 2 How did you and the Prime Minister assess the relative strengths of the candidates on the shortlist?
  • Q 3 How many names were on the shortlist?
  • Q 4 Who was on the shortlist?
  • Q 5 Were there any Indigenous candidates on the shortlist? Any visible minorities?
  • Q 6 Was the nominee the candidate you recommended to the Prime Minister?
  • Q 7 Did you share the shortlist with those you consulted? Did you share other information about the candidates with those you consulted?
• Functional bilingualism requirement and Official Languages Act
  • Q 8 What level of bilingualism is required, and how is this assessed?
  • Q 9 Would the Government’s proposed amendments to the Official Languages Act in Bill C-32 enshrine the functional bilingualism requirement in law?
  • Q 10 Would the Government’s proposed amendments to the Official Languages Act force the Supreme Court of Canada to sit in panels of seven or fewer judges? Would this jeopardize the functioning of the Court?
  • Q 11 Is there a risk that Bill C-32’s proposed amendment to section 16 of the Official Languages Act in relation to language requirements for the Supreme Court of Canada is unconstitutional?
  • Q 12 Why doesn’t the Government directly enshrine the bilingualism requirement by making it a requirement for appointment to the Supreme Court of Canada?
• Indigenous Representation
  • Q 13 Why did the Government not take this opportunity to appoint the first Indigenous justice to the Supreme Court of Canada?
  • Q 14 Respected Indigenous jurists and the Indigenous Bar Association have argued that the Government’s policy commitment to only appoint functionally bilingual candidates has created a barrier for Indigenous jurists. How do you answer this criticism?
  • Q 15 The Government made a policy commitment to only appoint functionally bilingual judges. Why not make a policy commitment that there must be at least one Indigenous jurist on the Supreme Court of Canada? Or support a Constitutional amendment to reserve one or more seats on the Court for Indigenous jurists?
  • Q 16 The Government’s white paper on official languages modernization states: “The growing presence of highly qualified Indigenous jurists leads the Government to actively envision the appointment of Indigenous judges to the Supreme Court of Canada.” Will the Government commit to appointing an Indigenous candidate for the next vacancy, coming up by 2022?
  • Q 17 If the Government is serious about Indigenous representation, shouldn’t one of the Independent Advisory Board members be nominated by the Indigenous Bar Association?
• Diversity and Gender
  • Q 18 The Government has emphasized the need for a Supreme Court of Canada that reflects the diversity of Canadians. How was diversity taken into account in the selection process?
  • Q 19 It is a significant advancement for Canada that Justice Jamal is the first person of colour ever to have been nominated to our country’s highest court. Arguably this change has been too slow coming, and we know that as recently as 2019 the IAB raised concerns about the lack of diversity among candidates who applied to the court. Can you tell us about how the Government plans to continue to advance diversity at all levels of the judiciary?
  • Q 20 Why is there still a lack of diversity in appointments to some Canadian courts, such as the Federal Court?
  • Q 21 By choosing a man, you have tilted the gender balance on the Court to six men and only three women. How is this acceptable in 2021?
• Confidentiality
  • Q 22 In light of the public release of confidential information regarding candidates for the 2017 appointment process, how can candidates, parliamentarians and Canadians have confidence in the confidentiality of this process?
  • Q 23 What is the Government doing to address leaks surrounding the 2017 Supreme Court appointment process?
• Timing of Process
  • Q 24 The Independent Advisory Board has previously commented on the challenges that arise with tight timeframes. The time allotted for candidates to apply, and for the IAB to complete its review, has not be significantly expanded, despite the fact that this vacancy could have been anticipated years in advance. Why didn’t the Government allow more time for this nomination process?
• Process and Independent Advisory Board
  • Q24 Who decides who gets to sit on the Independent Advisory Board?

Nominee and shortlist

Q 1 What was it about the nominee that made him stand out in comparison with other candidates on the shortlist?

• Justice Jamal stood out as an exceptionally qualified jurist with a record of contribution and service to the legal profession and to Canada. I have the outmost confidence that he will bring not only intellectual and analytic excellence to his role on the court, but a deep and distinct understanding of Canadian society, gained through his experience as an advocate, a constitutional scholar and teacher, a mentor and leader in a range of professional and civic activities (often on a pro bono basis), and as an individual imprinted with his own life experience as an immigrant to our country. I encourage all Canadians to read Justice Jamal’s application questionnaire and his thoughtful and inspiring reflections on how his life experiences have influenced his public service through law. He was quite simply the strongest candidate amongst a truly exceptional and worthy field.

Q 2 How did you and the Prime Minister assess the relative strengths of the candidates on the shortlist?

• Decisions throughout the selection process have been based on the qualifications and assessment criteria, including the Prime Minister’s ultimate decision on the Government’s nominee.
• The assessment the Advisory Board provided for each candidate on the shortlist was of fundamental importance to this process.
• The Prime Minister’s decision was also informed by my recommendations.
• I am confident that the Prime Minister’s chosen nominee is remarkable both as a jurist and as a person. He will make an excellent Justice of the Supreme Court of Canada.

Q 3 How many names were on the shortlist?

• In order to preserve the confidentiality of the process and the privacy of applicants, I will not be commenting on the shortlist.

Q 4 Who was on the shortlist?

• Since establishing this new process, the Government has been clear that the shortlist will remain confidential. That was the expectation and undertaking under which candidates applied.
• In striking a careful balance between transparency and confidentiality, the Government decided that the process should respect the privacy of candidates so that as many qualified candidates as possible would apply.
• Consequently, I will not be commenting on the names on the shortlist, and I am confident that all those who have been involved in this process will respect their duty of confidentiality out of respect for the candidates and the integrity of the Supreme Court.

Q 5 Were there any Indigenous candidates on the shortlist? Any visible minorities?

• Since establishing this new process, the Government has been clear that the shortlist will remain confidential. This includes not disclosing attributes or information about the shortlist that might identify those on it.
• As was the case with the past selection processes, the Independent Advisory Board will publish a report within a month of the appointment that will provide a breakdown of the diversity of those who submitted an application. This may also be an area in which Ms Campbell can provide some additional information today, should she feel this is appropriate.

Q 6 Was the nominee the candidate you recommended to the Prime Minister?

• I of course cannot answer that question. My advice and discussions with the Prime Minister on this matter are confidential.
• To respect the Prime Minister’s prerogative, the confidentiality of the process, and the reputation of the Supreme Court of Canada, it would be inappropriate for me to make any comments that might disclose the recommendations I made to the Prime Minister.

Q 7 Did you share the shortlist with those you consulted? Did you share other information about the candidates with those you consulted?

• The purpose of my consultations on the shortlist was to develop my recommendation to the Prime Minister as to who the Government’s nominee should be.
• We anticipated that those consulted would be able to share particular insights into the strength of candidates on the shortlist, based on, for example, knowledge of the candidate’s reputation for integrity within the legal and broader community.
• I did share the shortlist with some of those I consulted, such as the Opposition Justice critics and the Chief Justice of Canada. Members of Parliament, Senators and members of the Bar were each required to sign non-disclosure agreements before viewing the names on the shortlist.
• I did not share the detailed and rigorous analysis of each applicant’s file conducted by the Independent Advisory Board.

Functional bilingualism requirement and Official Languages Act

Q 8 What level of bilingualism is required, and how is this assessed?

• The qualifications and assessment criteria specify this functional requirement as follows: “It is expected that a Supreme Court judge can read materials and understand oral argument without the need for translation or interpretation in French and English. Ideally, the judge can converse with counsel during oral argument and with other judges of the Court in French or English.”
• This competency is assessed independently by the Office of the Commissioner for Federal Judicial Affairs. I understand the Office of the Commissioner has developed an evaluation process for assessing the language requirement based on its expertise in language training for federally appointed judges.

Q 9 Would the Government’s proposed amendments to the Official Languages Act in Bill C-32 enshrine the functional bilingualism requirement in law?

• The Government’s proposal is to remove the exception that applies to the Supreme Court of Canada in subsection 16(1) of the Official Languages Act. Such a change would give parties before the Court the right to a panel of justices who can hear their case in the official language of their choice, without the assistance of an interpreter.
• The qualifications for appointment to the Supreme Court are set out in the Supreme Court Act. The Government’s proposal would not change these qualifications.
• I emphasize, however, that our Government remains committed to our policy of appointing functionally bilingual judges to the Court.

Q 10 Would the Government’s proposed amendments to the Official Languages Act force the Supreme Court of Canada to sit in panels of seven or fewer judges? Would this jeopardize the functioning of the Court?

• I am committed to ensuring the Supreme Court of Canada is able to continue to discharge its fundamental functions to the benefit of all Canadians. The proposal included in Bill C-32 would not jeopardize the ability of the Court to function.
• The proposed amendment would impose a duty on the Court to ensure the panel hearing a proceeding is able to understand the official language, or languages, chosen by the parties without the assistance of an interpreter. This aims to benefit Canadians by enhancing access to justice in both official languages.
• It would be inappropriate for me to speculate on the language competencies of existing Justices or on the manner in which the Chief Justice of Canada would administer the Court.
• I add that our Government has, since 2016, upheld our commitment to appoint functionally bilingual judges. I am confident the Supreme Court would be able to continue to serve Canadians exceptionally well.

Q 11 Is there a risk that Bill C-32’s proposed amendment to section 16 of the Official Languages Act in relation to language requirements for the Supreme Court of Canada is unconstitutional?

• The Supreme Court is a fundamentally important national institution. We believe the proposed institutional obligation is important and appropriate, not only to enhance access to justice in both official languages but to support official languages more broadly.
• In developing the proposed amendment, the Government carefully considered the jurisprudence in relation to the composition and essential features of the Supreme Court of Canada.
• We believe the proposal is consistent with this jurisprudence, while advancing the objective of ensuring equal access to the Court, regardless of the official language chosen by the parties that appear before it.
• I add that since 1988, section 16 of the Official Languages Act has set out the duty of every federal court to ensure that every judge who hears the proceedings in a given case can understand English or French, or both official languages (according to the choice made by the parties) without the assistance of an interpreter.
• An exception for the Supreme Court of Canada was inserted into section 16. Our Government believes the time has come to withdraw this exception. From a practical perspective, the past decades have seen the development of a pool of competent bilingual jurists across the country in every region of Canada. Our Government’s appointments over the past years have demonstrated this.

Q 12 Why doesn’t the Government directly enshrine the bilingualism requirement by making it a requirement for appointment to the Supreme Court of Canada?

• Our Government believes that its commitment to functional bilingualism for Supreme Court appointments ultimately promotes access to justice in both official languages. We remain committed to appointing individuals to the Supreme Court who are functionally bilingual.
• However, entrenching norms and values in statute is not the only way to promote them. We believe it is better to focus on moving the yardsticks in practice.

Indigenous Representation

Q 13 Why did the Government not take this opportunity to appoint the first Indigenous justice to the Supreme Court of Canada?

• For this and for all vacancies, decisions throughout the selection process have been based on the qualifications and assessment criteria, including the Prime Minister’s ultimate decision on the Government’s nominee.
• The choice of nominee involved weighing various factors and deciding who, among a group of outstanding candidates on the shortlist prepared by the Independent Advisory Board, was the most exemplary candidate at this point in time.
• On the basis of a rigorous assessment, the nominee stood out, and I have no doubt he will be a valuable addition to the Supreme Court.
• Indigenous jurists are an essential and necessary element of Canada’s judiciary, which is enriched and strengthened through their service. While our Government is proud of the progress made in appointing Indigenous jurists to our superior court judiciary, I acknowledge that more needs to be done.
• The growing presence of highly qualified Indigenous jurists leads the Government to actively envision the appointment of Indigenous judges to the Supreme Court of Canada.

Q 14 Respected Indigenous jurists and the Indigenous Bar Association have argued that the Government’s policy commitment to only appoint functionally bilingual candidates has created a barrier for Indigenous jurists. How do you answer this criticism?

• Our Government has committed to appointing only judges to the SCC who are functionally bilingual.
• I am very mindful of the concerns raised about the interaction of this requirement with the possibility of appointing an Indigenous justice to the Supreme Court, and have had several exchanges with the Indigenous Bar Association on this matter.
• Indigenous jurists are an essential and necessary element of Canada’s judiciary, which is enriched and strengthened through their service. While our Government is proud of the progress made in appointing excellent Indigenous jurists to our superior court judiciary, I acknowledge that more needs to be done.
• The growing presence of highly qualified Indigenous jurists, including those who are functionally bilingual in both official languages, gives me confidence that we are moving toward Indigenous representation at all levels of our judiciary.

Q 15 The Government made a policy commitment to only appoint functionally bilingual judges. Why not make a policy commitment that there must be at least one Indigenous jurist on the Supreme Court of Canada? Or support a Constitutional amendment to reserve one or more seats on the Court for Indigenous jurists?

• Our Government is committed to ensuring greater Indigenous representation in Canada’s legal institutions. I believe Canada’s judiciary is strengthened by the growing number of Indigenous jurists appointed to its ranks. While our Government is proud of the progress made in appointing Indigenous jurists to our superior court judiciary, I acknowledge that more needs to be done.
• The structure and composition of the Supreme Court raise complex policy and legal questions that have been the subject of significant commentary and jurisprudence. Certain changes would require detailed consideration and broad-based discussions, and could also depend on constitutional reform requiring more than unilateral federal action.
• As I have indicated to stakeholders, including the Indigenous Bar Association, our Government is committed to respectful dialogue, in the spirit of reconciliation, on how to improve Indigenous representation in Canada’s legal institutions. I am grateful for the IBA’s commitment to continued engagement with the Government in order to forge a path to greater Indigenous representation in Canada’s legal institutions.

Q 16 The Government’s white paper on official languages modernization states: “The growing presence of highly qualified Indigenous jurists leads the Government to actively envision the appointment of Indigenous judges to the Supreme Court of Canada.” Will the Government commit to appointing an Indigenous candidate for the next vacancy, coming up by 2022?

• Our Government is committed to ensuring greater Indigenous representation in Canada’s legal institutions. I believe our judiciary is strengthened by the growing number of Indigenous jurists appointed to its ranks. While our Government is proud of the progress made in appointing Indigenous jurists to our superior court judiciary, I acknowledge that more needs to be done.
• Since 2016, our Government has followed an independent, open and transparent process for appointing Supreme Court of Canada Justices. For this and all future vacancies on the Court, the starting point is the published qualifications and assessment criteria. The Independent Advisory Board assesses candidates on the basis of these criteria and the needs of the Court, as identified through consultations with the Chief Justice of Canada.
• The choice of nominee involves weighing various factors and deciding who, among a group of outstanding candidates, is the best fit given the Supreme Court’s needs at this time.
• I can confirm that the Government will follow this process for the next vacancy on the Court. To make any further commitments would be disrespectful of the integrity of the process and of potential future candidates.

Q 17 If the Government is serious about Indigenous representation, shouldn’t one of the Independent Advisory Board members be nominated by the Indigenous Bar Association?

• The Government has carefully selected members of the Independent Advisory Board with a view to ensuring diversity in the Board itself. Their role is to bring their diverse backgrounds and viewpoints to the ultimate goal of identifying the best candidates.
• The Independent Advisory Board includes a member nominated by the Canadian Bar Association. Currently, this member is also a member of the Indigenous Bar Association, helping to strengthen and enrich the Board’s deliberations.
• The proposal to designate a member of the Board as being nominated by the Indigenous Bar Association is worth exploring. As I have indicated to stakeholders, including the Indigenous Bar Association, our Government is committed to respectful dialogue, in the spirit of reconciliation, on how to improve Indigenous representation in Canada’s legal institutions.

Diversity and Gender

Q 18 The Government has emphasized the need for a Supreme Court of Canada that reflects the diversity of Canadians. How was diversity taken into account in the selection process?

• Our Government is deeply committed to increasing the diversity of the judiciary so that it reflects the diversity of Canada.
• For this and all vacancies on the Court, the Advisory Board, the Prime Minister and I take as our starting point the published qualifications and assessment criteria. These criteria include diversity-related considerations. For example:
  • the ability to appreciate a diversity of views, perspectives and life experiences, including those relating to groups historically disadvantaged in Canadian society; and
  • the institutional goal of ensuring that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society.
• The choice of nominee involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit given the Supreme Court’s needs at this time.
• Canada has a remarkable complement of outstanding jurists of a variety of backgrounds, including an increasing number of visible minorities and Indigenous Canadians. An important part of the selection process is to reach out to representative community and professional organizations in order to encourage candidates of diverse backgrounds to apply. Ms Campbell will be able to speak to the outreach completed by the IAB.
• I also note that our Government’s commitment to a diverse judiciary extends to all federal judicial appointments. Since 2015, we have succeeded in diversifying the ranks of the superior court judiciary at an unprecedented pace. As those courts become more fully reflective of Canadian society, the pool deepens of experienced judges who may seek appointment to the country’s highest court in the future. I have every expectation that this will be the case.

Q 19 It is a significant advancement for Canada that Justice Jamal is the first person of colour ever to have been nominated to our country’s highest court. Arguably this change has been too slow coming, and we know that as recently as 2019 the IAB raised concerns about the lack of diversity among candidates who applied to the court. Can you tell us about how the Government plans to continue to advance diversity at all levels of the judiciary?

• The Government takes this concern very seriously. I believe it requires action on two fronts.
• First, as I have shared with this Committee previously, diversity on our nation’s highest court depends in part on diversity within the judiciary at large. The more we can make our superior courts reflective of the society they serve, the more opportunities we are providing for individuals from underrepresented backgrounds to gain exceptional judicial experience that would qualify them to serve on the Supreme Court.
• While this process takes time, I am extremely proud of our progress: not only are the majority of judges we have appointed since 2015 women, we have also appointed an unprecedented number of candidates who are racialized, including Black and Indigenous jurists, and candidates belonging to the LGBTQ2+ community. I have every confidence that the changing face of Canada’s judiciary on the front lines will come to be reflected on its highest court.
• Second, we must be proactive in seeking out and encouraging candidates from underrepresented backgrounds and communities to apply to the Supreme Court. Ms Campbell will be able to speak to the outreach completed by the IAB.
• We will certainly continue to build on the momentum of these efforts for future vacancies at the Supreme Court.

Q 20 Why is there still a lack of diversity in appointments to some Canadian courts, such as the Federal Court?

• I am proud of the progress we have made, and I know there is more to do. I understand that there are unique considerations applicable to the Federal Court, given the nature of its jurisdiction and the subject-matter expertise required of many of the judges who serve on that court. We nonetheless continue to make process in rendering that court more reflective of the society it serves; I was extremely proud to appoint the Honourable Lobrat Sadrehashemi to the court earlier this year, for example.
• I am grateful for the thoughtful engagement of the Canadian Association of Refugee Lawyers and other groups on this issue; I keep their perspectives very much in mind when making judicial appointments.

Q 21 By choosing a man, you have tilted the gender balance on the Court to six men and only three women. How is this acceptable in 2021?

• Our Government is committed to gender equality. The Supreme Court boasts three exceptional female jurists.
• The terms of reference for the Advisory Board specify our Government’s “intent to achieve a gender-balanced Supreme Court of Canada”. This is and will continue to be our objective. The difficult decision we made involved weighing various factors and deciding who, among a group of outstanding candidates, was the best fit for the Supreme Court’s needs at this time.

Confidentiality

Q 22 In light of the public release of confidential information regarding candidates for the 2017 appointment process, how can candidates, parliamentarians and Canadians have confidence in the confidentiality of this process?

• The Government has consistently made clear that the disclosure of confidential information regarding candidates for judicial appointment is unacceptable.
• The current selection process has strict confidentiality measures. The fundamental importance of confidentiality has been strongly emphasized to all those involved in the process. All members of the IAB, as well as MPs, senators and members of the Bar – have been required to sign a non-disclosure agreement. Members of my staff and members of the Prime Minister’s staff who worked on the process that lead to the nomination also signed NDAs.
• As I indicated in my opening remarks, the fair and dignified treatment of every candidate requires that this process be completed in confidence. I am committed to ensuring that this confidentiality be maintained.

Q 23 What is the Government doing to address leaks surrounding the 2017 Supreme Court appointment process?

• You will recall that the Government condemned in the strongest terms the disclosure of confidential information relating to the 2017 Supreme Court appointments process. This was extremely unfair to the individuals involved, and to their families.
• The Privacy Commissioner conducted a thorough investigation of the matter and found no evidence of an unauthorized disclosure of personal information by the Department of Justice or by the Privy Council Office.
• The Government has made concerted efforts to ensure that such a disclosure does not happen again. The current selection process has strict confidentiality measures. The fundamental importance of confidentiality has been strongly emphasized to all those involved in the process, and non-disclosure agreements have been required for all those involved or consulted.

Timing of Process

Q 24 The Independent Advisory Board has previously commented on the challenges that arise with tight timeframes. The time allotted for candidates to apply, and for the IAB to complete its review, has not be significantly expanded, despite the fact that this vacancy could have been anticipated years in advance. Why didn’t the Government allow more time for this nomination process?

• The Government felt that the timelines allowed sufficient time for each stage of the process, including the rigorous assessment process carried out by the Independent Advisory Board and resulting in its shortlist of candidates. Certainly the process has succeeded in identifying an outstanding nominee.
• We understand that this process is onerous both for candidates and for those involved in assessing them – as befits a process for a judicial appointment of this significance. Nonetheless, we are always receptive to feedback about how the process can be improved. I welcome the insights of Ms Campbell and her IAB colleagues in this respect, and I will ensure that their comments about timing receive close attention.

Process and Independent Advisory Board

Q 24 Who decides who gets to sit on the Independent Advisory Board?

• The IAB is designed to be independent and socially reflective. Its members are nominated both by me and by national organizations that are closely connected to the administration of justice and preservation of the rule of law.
• Of the IAB’s seven members, three – including the Chair – are nominated by the Minister of Justice. The remaining four are nominated respectively by the Canadian Bar Association, the Federation of Law Societies of Canada, the Canadian Judicial Council, and the Council of Canadian Law Deans.
• Each of the nominees to the IAB are selected for their ability to represent and engage with different facets of our diverse society, and for their understanding of the critical role that the Supreme Court plays in it. I don’t think there can be any doubt that Canadians have been served by an exceptional and capable group of individuals in the current IAB.

• Previous Page
• Table of Contents
• Next Page