The high court’s requirement for 'functionally bilingual' justices could limit pool of candidates
Supreme Court of Canada Justice Sheilah Martin will retire from the bench on May 30, leaving open a judicial vacancy at Canada’s highest court.
During her tenure, Martin authored decisions on a range of criminal and civil issues, including racial profiling, bail conditions, self-defence, contractual interpretation, and tort liability for municipalities. She will have served more than eight years on the high court by the time of her departure.
“Justice Martin is widely respected for the depth of her legal scholarship, her commitment to fairness, and her principled approach to justice,” said Chief Justice Richard Wagner in a statement on Tuesday. “She has made remarkable contributions to Canadian jurisprudence and her commitment to education has carried over into her career on the bench.”
Wagner added that the process for selecting Martin’s replacement “respects the independence of the judiciary and is anchored in the fundamental values of openness, transparency, and integrity.
“As always, I am confident that these principles will guide the careful and timely appointment of a new justice to the Supreme Court of Canada.”
Candidates to replace Martin will be restricted to those working in Western or Northern Canada, in accordance with a Supreme Court convention that aims to ensure that the court’s nine justices are representative of different regions across the country. While the Supreme Court Act requires three of the court’s justices to hail from Quebec, tradition dictates that the court also employ three justices from Ontario, two from the Western provinces or Northern Canada, and one from the Atlantic provinces.
Martin, who grew up in Montreal but forged a decades-long legal career in Alberta, joined the high court in 2017 as a Western province appointee. The Supreme Court has never appointed a judge from Northern Canada.
Because the high court hears appeals in both French and English, candidates to replace Martin must also be “functionally bilingual,” a requirement that has previously restricted the pool of eligible candidates from Western and Northern Canada. According to the Office of the Commissioner for Federal Judicial Affairs Canada, which supports the judicial appointment process for the Supreme Court, a “functionally bilingual” judge should be able to read case materials and understand oral arguments without needing translation to English or French.
Whenever a vacancy opens up at the Supreme Court, an independent advisory board solicits and seeks out applications from potential candidates to produce a shortlist of three to five names. The prime minister selects a nominee from the shortlist, who then faces questioning from federal legislators.
In 2023, Justice Mary Moreau – then the chief justice of Alberta Court of King’s Bench – was reportedly one of only two candidates the advisory board was able to present to Prime Minister Justin Trudeau, due to the lack of candidates from Western and Northern Canada who met the bilingual requirement.
Thomas Slade, a partner at Supreme Advocacy, predicts that some of the same candidates who were considered for Moreau’s role will be reviewed again for the new vacancy. While the advisory board does not publish its shortlist of candidates, Slade notes several names that were publicly discussed in 2023, including Manitoba Chief Justice Marianne Rivoalen, Chief Justice of the Court of King's Bench of Manitoba Glenn Joyal, and Federal Court of Appeal judge Gerald Heckman. All three are fluent in both English and French.
Slade says that other judges in Western and Northern Canada who could meet the bilingual requirement include Alberta Court of Appeal Justices Jane Fagnan and April Grosse, Saskatchewan Court of Appeal Justice Naheed Bardai, British Columbia Court of Appeal Justice Peter Edelmann, and Yukon Supreme Court Judge Edith Campbell.
On Tuesday, the high court noted that under the Judges Act, Martin can continue to participate in judgments in cases she has heard for up to six months after she retires.
Martin was called to the Alberta bar in 1989, after earning legal degrees from McGill University, the University of Alberta, and the University of Toronto. She held teaching positions at the University of Calgary, the Department of Justice, and Osgoode Hall Law School before serving as dean of the University of Calgary’s Faculty of Law.
Martin practised criminal and constitutional litigation for nearly a decade before being appointed to the Court of Queen’s Bench for Alberta and later, the Courts of Appeal of Alberta, the Northwest Territories, and Nunavut. Martin also serves as a deputy judge for the Supreme Court of Yukon.
Jeremy Opolsky, a partner at Torys LLP, called Martin “a force on the court” and said Tuesday that he was surprised by the justice’s retirement, which was “not expected for many years to come.”
The lawyer pointed to numerous decisions authored by Martin that demonstrated a “deep expertise” in criminal law.
“She was deeply engaged with activities in the bar and across Canada, with an abiding commitment to welcoming lawyers and Canadians to the court,” Opolsky said.
Sujit Choudhry, principal at Circle Barristers, said Martin’s departure would leave a “huge void” at the high court.
“She has been a voice for principled and robust interpretations of the Charter, especially of equality rights,” Choudhry said. “Her joint dissent in Dickson [v. Vuntut Gwitchin First Nation] set out a courageous and principled stance. She is a commanding presence in family law and criminal law.”
In a statement, Martin called serving at the Supreme Court “an honour and a highlight of my professional life.
“I am forever thankful for the precious opportunity it provided to better understand the richness and diversity of the people in our country and the laws and institutions that allow us to live together with respect, dignity and equality,” Martin added. “I have taken seriously the need for a strong and independent judiciary to address issues of national importance, safeguard the Constitution and promote the rule of law.”
