The Honourable Mary Moreau's Questionnaire

Under the new Supreme Court of Canada Judicial Appointments Process and the announcement made by the Prime Minister on June 20, 2023, qualified applicants from Western Canada and Northern Canada could apply for appointment to the Supreme Court by completing a Questionnaire. The Questionnaires were used by the Independent Advisory Board for Supreme Court of Canada Judicial Appointments to review and identify candidates who are jurists of the highest caliber, are functionally bilingual, and are representative of the diversity of Canada. Candidates were advised that parts of their Questionnaire could be made available to the public should they be chosen as the Prime Minister’s nominee.

Below are Parts 3, 4, 5, 6, 7, and 10 of the Questionnaire completed by the Honourable Mary Moreau (view Bio).

Questionnaire for the Supreme Court of Canada Judicial Appointment Process

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PART 3 - STATUTORY QUALIFICATIONS

Bar Membership(s):

Bars, Call dates, Reason for cessation of bar membership (i.e. resigned, appointed to the bench, other) and date of reinstatement (if applicable).

Called to the Bar (Law Society of Alberta) in July 1980 and member until November 29, 1994 (date appointed to Court of Queen’s Bench of Alberta)

Judicial Experience (if applicable):

(Include all dates of appointment)

Appointed judge of the Court of Queen’s Bench of Alberta on November 29, 1994

Appointed deputy judge of the Supreme Court of Yukon on January 19, 1996

Appointed deputy judge of the Supreme Court of the Northwest Territories on March 16, 2005

Appointed Chief Justice of the Court of King’s Bench of Alberta on October 12, 2017

RESIDENCE

(Please confirm the following mandatory requirement statement)

☑ The Supreme Court Act requires that all justices shall reside in the National Capital Region or within 40 kilometers thereof. I confirm that I either currently meet this requirement or that if appointed, I will move my residence to the National Capital Region or within 40 kilometers thereof.

PART 4 – LANGUAGE

Please note that in addition to the answers to the questions set out below you may be assessed as to whether you are functionally bilingual.

Without further training, are you able to read and understand court materials in:

English: Yes
French: Yes

Without further training, are you able to discuss legal matters with your colleagues in:

English: Yes
French: Yes

Without further training, are you able to converse with counsel in court in:

English: Yes
French: Yes

Without further training, are you able to understand oral submission in court in:

English: Yes
French: Yes

PART 5 – EDUCATION

Name of Institutions, years attended, degree/diploma and year obtained:

University of Montréal (French program, May to July 1974)

Saint-Jean faculty, University of Alberta (Bachelor of Arts program in French, 1974 to 1976)

Faculty of Law, University of Alberta (LL.B. diploma, 1976 to 1979)

University of Sherbrooke, Quebec (French-language study program on the Civil Code of Québec, May to July 1977)

Continuing Education:

As a lawyer, I took part in several training sessions offered by the Legal Education Society of Alberta (LESA).

As a judge, I participated in educational programs offered by the National Judicial Institute. Here is a list of the programs I registered in over the last 10 years:

Court of King’s Bench of Alberta Education Seminar, September 27 to 29, 2023

Joint Education Seminar of the Court of Appeal and Court of King’s Bench of Alberta, May 16, 2023

Court of King’s Bench of Alberta Education Seminar, January 25 to 27, 2023

Court of King’s Bench of Alberta Education Seminar, October 5 to 7, 2022

Federal Court of Appeal and Federal Court 50th Anniversary Seminar, June 27 to 29, 2022

Joint Education Seminar of the Court of Appeal and Court of Queen’s Bench of Alberta, March 31, 2022

Leadership Seminar for Chief Justices and Associate Chief Justices, April 24 and 25, 2022

Court of Queen’s Bench of Alberta Education Seminar (online), January 26 to 28, 2022

Court of Queen’s Bench of Alberta Education Seminar (online), October 6 to 8, 2021

Court of Queen’s Bench of Alberta Education Seminar (online), June 4, 2021

Court of Queen’s Bench of Alberta Education Seminar (online), January 26 to 29, 2021

Court of Queen’s Bench of Alberta Education Seminar (online), September 24 and 25, 2020

Court Martial Appeal Court of Canada Education Seminar, February 19 to 21, 2020

Court of Queen’s Bench of Alberta Education Seminar, January 29 to 31, 2020

Court of Queen’s Bench of Alberta Education Seminar: “101”, January 27 and 28, 2020

Court of Queen’s Bench of Alberta Education Seminar, September 25 to 27, 2019

Judging Better, Judging Smarter (joint CSCJA and NJI program), July 31 to August 2, 2019

Court of Queen’s Bench of Alberta Education Seminar, May 29, 2018

Judicial Ethics Seminar: Ethics in the Age of Disruption, May 16 to 18, 2018

Indigenous Law Symposium, April 27, 2018

Court of Queen’s Bench of Alberta Education Seminar, January 31 to February 2, 2018

Supreme Court of Canada Symposium: Looking to the Future, October 25 and 26, 2017

Managing and Maintaining Control in Large Jury Cases, October 3, 2017

Court of Queen’s Bench of Alberta Education Seminar: Oral Judgments, September 27 to 29, 2017

Court of Queen’s Bench of Alberta Education Seminar, September 29 and 30, 2016

Court of Queen’s Bench of Alberta Education Seminar, September 24 and 25, 2015

Court of Queen’s Bench of Alberta Education Seminar, January 28 to 30, 2015

Court of Queen’s Bench of Alberta Education Seminar: “Can We Improve How We Manage and Schedule Our Workload? A Starting-Point for Open-Minded Discussions”, October 30 and 31, 2014

Court of Queen’s Bench of Alberta Education Seminar, January 29 to 31, 2014

IOJT 6th International Conference on the Training of the Judiciary, November 3 to 7, 2013

Court of Queen’s Bench of Alberta Education Seminar: “Learning to Love JDRs”, October 31 and November 1, 2013

Superior Court of Justice – Ontario: education seminar, May 9 to 11, 2012

Judicial Ethics Seminar: A New Judicial Identity, April 25 to 27, 2012

Criminal Law Seminar, March 28 to 30, 2012

Superior Court of Québec: annual general meeting, October 11 to 15, 2011

International Judicial Faculty Development Program, December 8 to 10, 2010

Court of Queen’s Bench of Alberta Education Seminar: Rules of Procedure, October 15, 2010

Court of Queen’s Bench of Alberta Education Seminar, November 15 and 16, 2007

Hearing and Deciding Charter Issues, June 17 to 22, 2007

Joint Alberta Courts Education Seminar: “DNA Orders and Mentally Disordered Offenders”, May 16 to 18, 2007

Criminal Law Seminar: sexual assault case management, March 29 to 31, 2006

Supreme Court of Yukon: Northern Judges Seminar, March 4, 2006

Joint Alberta and Saskatchewan Education Seminar, May 30 and 31, 2005

Criminal Law Seminar: The ins and outs of sentencing, March 30 to April 1, 2005

Supreme Court of the Northwest Territories: 50th Anniversary Seminar, March 8 and 9, 2005

Family Law Seminar: Children, February 11 to 13, 2004

Court of Queen’s Bench of Alberta Education Seminar: “Poverty and Access to Justice”, November 13, 2003

Criminal Law Seminar: criminal cases, March 19 to 21, 2003

Aboriginal Law Seminar, January 23 to 25, 2003

Court of Queen’s Bench of Alberta Education Seminar, November 8 and 9, 2001

Other Programs:

“The Path – Your Journey through Indigenous Canada”, online Indigenous cultural competency education program by the Law Society of Alberta – December 2020

Advanced French language training sessions (five days) by the Office of the Commissioner for Federal Judicial Affairs: April 1998, 1999, 2000, 2001, 2002, 2003, 2004, 2005, 2007, 2008, 2011, 2013, 2014, 2015, 2016 and 2017

Learning Italian since 2012 (classroom and private courses)

Academic Awards:

University of Alberta Faculty of Law Constitutional Law Prize, 1978

PART 6 – PROFESSIONAL AND EMPLOYMENT HISTORY

Please include a chronology of work experience, starting with the most recent and showing employers’ names and dates of employment.

Legal Work History:

Chief Justice of the Court of King’s Bench of Alberta, October 2017 to present

Judge of the Court of Queen’s Bench of Alberta, November 1994 to October 2017

Partner, Rand Moreau, Barristers and Solicitors – Edmonton, June 1989 to November 1994

Lawyer, Frohlich Irwin and Rand, Barristers and Solicitors – Edmonton, November 1981 to May 1989

Lawyer, Shtabsky & Co., Barristers and Solicitors – Edmonton, July 1980 to November 1981

Articling student, Shtabsky & Co., Barristers and Solicitors – Edmonton, July 1979 to July 1980

Non-Legal Work History:

Journalist and news bulletin editor: Radio-Canada Edmonton (television and radio), summers of 1976, 1978 and 1979

Other Activities and Memberships:

List all bar associations, legal or judicial-related committees of which you are or have been a member, and give the titles and dates of any offices which you have held in such groups.

Judge:

Member of the Canadian Judicial Council: Member since October 2017, member of the Executive Committee since September 2021, member of the Judicial Conduct Committee since June 2020, member of the Technology Committee since 2018 and chair since June 2021, and member of the Study Leave Committee from 2018 to 2021

Member of the Action Committee on Court Operations in Response to COVID-19, May 2020 to present, representing the Canadian Judicial Council

Member of the Finance Committee of the National Judicial Institute, November 2018 to present

Member of the Military Judges Selection Committee, 2016 to present

Member of the Alberta Judicial Council – provincial council that assesses applications for positions as judges of the Alberta Court of Justice and as applications judges of the Court of King’s Bench, and that handles complaints against those judges, 2017 to present

Member of JUDACIE (Judicial Advisory Committee on International Engagement): member from 2012 to 2018 and committee chair from 2019 to present

Member of the Canadian Superior Courts Judges Association, 1995 to present

Member of the Advisory Committee on the Publication of Judges’ Expenses – Office of the Commissioner for Federal Judicial Affairs, 2018 to 2020

Member of the Advisory Committee on Judicial Ethics, representing Alberta, the Northwest Territories and Nunavut, 2014 to 2017

Co-editor of the National Judicial Institute’s information letter on criminal law, 2012 to 2017

Member of the Strategic Planning Committee and the French Committee of the Court of Queen’s Bench of Alberta, 2012 to 2017

Member of the Planning Committee of the National Judicial Institute for the annual spring conference on criminal law, 2008 and committee co-chair from 2009 to 2015

Member of the jury of the Legal Issues of FASD Consensus Development Conference, Institute of Health Economics, Edmonton, September 2013

President, Canadian Superior Court Judges Association, 2011 to 2012

Member of the Executive Committee of the Canadian Superior Court Judges Association, 2008 to 2011

Chair and Co-Chair of the Judicial Conduct Review Committee of the Canadian Superior Court Judges Association, 1999 to 2007

Judge in charge of the Electronic Bench Book project of the National Judicial Institute: “Les droits linguistiques de l’accusé” [The Language Rights of the Accused] in 2009 and Bench Book update in 2017

President of the Third Study Commission (Criminal Law) of the International Association of Judges (elected position), 2006 to 2010

Lawyer:

Member of the Board of Directors of the Legal Education Society of Alberta, 1992 to 1999

Legal liaison of the Canadian Bar Association, Alberta Branch, 1996 to 1999

Member of advisory committees of the Fédération des communautés francophones et acadienne du Canada and the Commission nationale des parents francophones, 1993 to 1994

Instructor and member of the provincial committee for restructuring the Law Society of Alberta’s bar admission program in criminal law, 1993 to 1994

Guest panelist at the First Conference of the University of Ottawa’s Canadian Centre for Linguistic Rights, November 1993 (presentation entitled “Effectiveness of Language Litigation”)

Member of the ad-hoc provincial committee of Crown and defence attorneys on drafting the Alberta Rules of Court in French, 1992 to 1994

Cofounder of the Association des juristes d’expression française de l’Alberta (AJEFA) in 1990; Secretary of the AJEFA in 1990–1991; Vice-President of the AJEFA in 1991–1992 and member of the Board of Directors in 1993-1994

Delegate of the Fédération des communautés francophones et acadienne du Canada to the federal conference on renewing the Constitution, January 1992 (Calgary) and February 1992 (Vancouver)

Member of the Edmonton Regional Legal Aid Committee, Legal Aid Society of Alberta, 1988 to 1989 and Chair, 1990 to 1993

Member of the advisory committee on constitutional issues of the Association canadienne-française de l’Alberta, 1991 to 1992

President, Criminal Trial Lawyers Association (organization of criminal lawyers in Edmonton), 1988 to 1989

Vice-Chair, Canadian Bar Association, National Section: French Speaking Common Law Members, 1986 to 1989

Member of the Board of Directors and Executive of TV Canada/Télé-Canada in relation to an application for a bilingual national broadcasting service, 1987

Member of the Canadian Bar Association, Edmonton Young Lawyers Section, 1981 to 1983

Pro Bono Activities:

Actor in the play “The Government Inspector” in 2013 (non-profit) and member of the Board of Directors of Players de Novo, organization promoting local theatre in Edmonton, 2013 to 2017

Basketball coach, children’s team, 1998

Member of the parents committee (preschool and elementary school), École J.H. Picard, 1991 to 1993

Member of the parents committee, École Enfantine (French preschool program), Edmonton, 1989 to 1990

Teaching and Continuing Education:

(List all legal or judicial educational organizations and activities you have been involved with (e.g. teaching course at a Law Faculty, National Judicial Institute, Canadian Institute for the Administration of Justice, etc).

International Programs:

Mongolia: Project of the Department of Global Affairs and the Office of the Commissioner for Federal Judicial Affairs for judges and judicial administrators in Mongolia: presentations on judicial ethics and communications in Ulaanbaatar, January 30 to February 3 and March 20 to 24, 2023, and in Ottawa, November 24 to 26, 2022

Colombia: Project of the Department of Global Affairs and the Office of the Commissioner for Federal Judicial Affairs for judges in Colombia: online presentations on judicial ethics, November 10, 2022 and February 28, 2023

Ukraine: Project of the Office of the Commissioner for Federal Judicial Affairs in Ukraine (2018 to 2021) – court communications and public awareness:

- sessions in Ukraine, October 29 to November 2, 2018

- sessions in Ukraine, November 11 to 15, 2019

- sessions in Calgary, May 6 and 7, 2019

- online program on courts’ response to COVID for Ukrainian judges and judicial administrators, June 3, 2020

- online program on family law for Ukrainian judges, June 18, 2021

Guyana: Online conferences for Guyanese judges on communications and awareness-raising strategies for building public confidence in the justice system, October 4 and 25, 2019

Rabat, Morocco: Trainer in the “Supporting Curriculum Development and Training on Ethics, Deontology and other specialized topics for Moroccan judges, clerks and other judicial personnel” program, American Bar Association Rule of Law Initiative, March 23 to 29, 2018

Port-au-Prince, Haiti: Trained Haitian justices of the peace on out-of-court settlement conferences, International Senior Lawyers Project, May 19 to 22, 2015

Mexico City, Mexico: Trainer in “The conduct of oral trials within the criminal adversarial system” program for federally appointed judges, Office of the Embassy of Canada to Mexico, February 16 to 19, 2015

Yalta, Ukraine: Permanent delegate of the Canadian Superior Court Judges Association to the annual conference of the International Association of Judges, October 4 to 10, 2013

Washington D.C.: Presentation to the conference of the International Organization for Judicial Training, “Policy implications of judicial education”, November 4 to 7, 2013

Programs in Canada:

Presentations for the National Judicial Institute:

Court of King’s Bench of Alberta Education Seminar: “101”, January 24, 2023

Court of King’s Bench of Alberta Education Seminar: “Technology Updates and Bail Court Processes”, October 5 to 7, 2022

Court of King’s Bench of Alberta Education Seminar: “101”, October 5, 2022

National All-Courts Seminar: “Justice in Motion”, meeting with the Right Honourable Richard Wagner, P.C., Chief Justice of Canada, September 14 and 15, 2022

Judging in Your First Five Years: Family Law (federally appointed judges) – Keynote speech: “Valuing Family Law”, June 12 and 13, 2022

Leadership Seminar for Chief Justices and Associate Chief Justices – "Tirer le meilleur parti de la technologie dans les tribunaux : les points de vue de juges, d’avocats et de théoriciens du droit" [Making the Best Use of Technology in the Courts: Points of View of Judges, Lawyers and Legal Scholars], April 24 and 25, 2022

Court of Queen’s Bench of Alberta Education Seminar (online), January 26 to 28, 2022

Court of Queen’s Bench of Alberta Education Seminar (online), keynote speech: “Valuing Family Law”, November 14 to 19, 2021

Judging Better, Judging Smarter (joint CSCJA and NJI program): “The Cloud”, July 31 to August 2, 2019

Seminar for Chief Justices and Associate Chief Justices: “Le rôle des communications stratégiques dans le contexte des affaires publiques et des politiques gouvernementales” [The Role of Strategic Communications in the Context of Public Affairs and Government Policies], March 31 to April 2, 2019

Court of Queen’s Bench of Alberta Education Seminar: “Internal Conflict Resolution Policy”, January 30 to February 1, 2019

Federal Court of Appeal Education Seminar: “Favoriser la courtoisie et la collégialité” [Fostering Civility and Collegiality], October 17 to 19, 2018

Court of Queen’s Bench of Alberta Education Seminar: “Technology at Home: What’s Happening at the Court of Queen’s Bench?”, September 26 to 28, 2018

Judicial Ethics Seminar: “Ethics in the Age of Disruption – Social media and ethical issues / judicial notice and the Internet / ethics potpourri”, May 16 to 18, 2018

The Art and Craft of Judging: Your “Sophomore Years”, Ethics I: A day in the life of a judge, February 26 to March 2, 2018

Court of Queen’s Bench of Alberta Education Seminar: “Difficult Issues in Sentencing”, January 25 to 27, 2017

Judicial Ethics Seminar: “Le lien entre le comportement et les principes” [The Connection Between Conduct and Principles], May 11 to 13, 2016

Court of Queen’s Bench of Alberta Education Seminar Bench and Bar Joint Session: “Civility: Communication and Ethics”, January 27 to 29, 2016

Judicial Ethics Seminar: “Les défis de la collégialité - PARTIE I : les conflits entre collègues, les courriels toxiques, le roulement de juges : comment établir et conserver la collégialité?” [The Challenges of Collegiality – Part I: Conflicts Between Colleagues, Toxic Emails, Rotation of Judges: How to Establish and Preserve Collegiality], April 23 to 25, 2014

Criminal Law Seminar: “Taking a Page off Problem-Solving Courts / Bill C-10: The Basics”, March 20 to 22, 2013

Court of Queen’s Bench of Alberta Education Seminar: “Facing the Challenges – Effective Pre-Trial Conferences / Best Practices for Preparation of PTC Memos”, January 30 to February 1, 2013

Other Activities:

Canadian Bar Association Women’s Forum, guest speaker, “The contributions of women lawyers employed by the Court of King’s Bench”, Edmonton, June 1, 2023

Canadian Bar Association, Madam Justice Project 2022: https://www.cba.org/Sections/Women-Lawyers/Madam-Justice/Madame-la-juge-en-chef-Mary-Moreau

University of Manitoba, guest speaker, “Défis et réussites de la Cour du Banc du Roi de l’Alberta – les procédures en français et bilingues” [Challenges and Successes of the Court of King’s Bench of Alberta – French and Bilingual Proceedings” (online), October 17, 2022

Panel member – CBA National French-speaking Common Law Members Symposium, “L’accès à la justice en français en Alberta” [Access to Justice in French in Alberta] (online), April 22, 2022

Member of the planning committee of the National Judicial Institute, “Justice in Motion”, National All-Courts Seminar, Québec, Quebec, October 14 and 15, 2022

Opening speech of the Concours Bastarache [moot court competition in French], “Le progrès vers l’accès efficace à la justice en Alberta” [Progress Toward Effective Access to Jsustice in Alberta] (online), March 18, 2022

Speech, Association of Family and Conciliation Courts, Alberta Chapter, “Access to Justice: Diversity & Inclusion in Family Law in Alberta”, March 4, 2022

Speech, Official Languages Directorate, “Language Rights in Prosecutions” (online), October 28, 2021

Speech, Association des juristes d’expression française de l’Alberta, “La justice dans les deux langues officielles à la Cour du Banc de la Reine : passé, présent et avenir” [Justice in Both Official Languages in the Court of Queen’s Bench: Past, Present and Future] (online), May 4, 2021

Co-speaker at the 21st annual conference, Advanced Administrative Law and Practice, “Ethical Advocacy, Professionalism and Decorum: Dos and Don’ts in a virtual courtroom” (online), Canadian Institute, October 6, 2021

Speech, Canadian Bar Association, Alberta Branch Leadership Forum, “A conversation with the Chiefs” (online), November 2, 2021

Speech, The Advocates Society (national), “The Bench Speaks: Access to Justice – how long does it take to get to trial and what we can do to fix it” (online), November 27, 2020

Speech, Collaborative Divorce Alberta Association, “Pandemic Response and Family Law Reforms” (online), June 16, 2020

Speech, LexisNexis, “How Alberta Courts are adapting to Covid-19” (online), June 4, 2020

Speech, Canadian Bar Association, Alberta Branch, “Measures taken by the Court of Queen’s Bench against COVID” (online), April 8, 2020

Speech, Provincial Court of British Columbia, training conference, “The Changing Face of the Courts: Access and Outreach in a Digital Age”, Vancouver, October 24, 2019

Speech, Canadian Superior Court Judges Association and National Judicial Institute, conference, “Le travail du comité de la technologie du Conseil canadien de la magistrature” [The Work of the Technology Committee of the Canadian Judicial Council], Calgary, August 2, 2019

Speech, Legal Education Society of Alberta Annual Banff Refresher: “Navigating our future: Transforming the role of the courts in family justice”, Lake Louise, Alberta, May 5, 2019

Speech, Canadian Bar Association West, “Reflections from the Bench”, Penticton, April 27, 2019

Speech, Alberta Law Review, “Leading the Court Through Change”, Edmonton, March 21, 2019

Speech, Federal Court of Appeal, Symposium, “Civility”, Mont-Tremblant, October 17, 2018

Speech, Canadian Institute for the Administration of Justice, “Entrepreneurial approaches to post-Jordan delay”, Edmonton, October 13, 2018

Speech, Legal Archives Society of Alberta, “Alberta women lawyers as trailblazers”, Calgary, October 4, 2018

Speech, Association des juristes d’expression française de l’Alberta, “Vision de la Cour du Banc de la Reine” [Vision for the Court of Queen’s Bench], Edmonton, June 1, 2018

University of Alberta, Faculty of Law, “Legal Writing Tips: The Trial Judge’s Perspective”, Edmonton, September 3, 2014

Community and Civic Activities:

(List all organizations of which you are a member and any offices held (with dates).

The Ethical Principles for Judges provide that judges must limit their active participation in community organizations. This is why my contribution to the community focuses, rather, on law-related organizations, as indicated above.

Member of the Academic Board of the Canadian Studies Institute of the University of Alberta, Saint-Jean Faculty, 2007 to 2009

Member of the Board of Directors of Le Franco, a weekly newspaper with province-wide circulation, Edmonton, 1986 to 1990

Speaker at marriage preparation courses of the Pastoral Institute of Edmonton, 1981 to 1982

Honours and Awards:

Women in Law Leadership Awards (Alberta) – Lifetime Achievement Award 2023 (to be presented on November 23, 2023)

Queen Elizabeth II’s Platinum Jubilee Medal, awarded by the Lieutenant Governor of Alberta, November 15, 2022

Dean’s Medal, Saint-Jean Campus, University of Alberta, February 22, 2020

Honorary doctorate in law, University of Alberta, June 12, 2019

Lillian Clements Trailblazer Award, Alberta Civil Trial Lawyers Association Women’s Legal Forum, February 2018

President’s Award, Canadian Superior Court Judges Association, 2013

Alumni Honour Award, University of Alberta, September 30, 2004

Prix de reconnaissance Faculté Saint-Jean [recognition award from the Saint-Jean Campus], University of Alberta, 2002

Prix Jean-Louis Lebel, Association des juristes d’expression française de l’Alberta, 1999

PART 7 - LEGAL EXPERIENCE AND EXPERTISE

List and explain your areas of legal expertise:

I have been a judge of the Court of King’s Bench of Alberta for more than 28 years and Chief Justice of that court since October 2017. Because of my responsibilities in my current role as Chief Justice, I hear cases less frequently. During my 23 years as a puisne judge of a court of general jurisdiction, I have heard a wide variety of cases — criminal, civil, family and commercial — in all their forms: motions, trials, judicial review and appeals. I am an ex officio member of the Alberta Court of Appeal, and for many years I sat on numerous panels of the Court of Appeal in criminal and civil matters. I have cultivated expertise in criminal law in presiding over numerous murder trials by jury. I have also acquired expertise in language rights in my practice as a lawyer and in presiding over a complex case as a deputy judge of the Northwest Territories. That case dealt with the territorial government’s obligation to have several of its departments provide government services in French.

List and explain other legal areas that you have experience in:

International Work

In my international work as a permanent delegate to the International Association of Judges and as a representative of the international division of the Office of the Commissioner for Federal Judicial Affairs, I have had the opportunity to train judges in several countries on a variety of subjects, mainly related to judicial ethics and effective communications with the public.

Leadership and collaborative work

In my role as Chief Justice of the Court of King’s Bench since October 2017, I have had the opportunity to work with a variety of groups to resolve numerous issues regarding the administration of justice. I work regularly with the Minister of Justice, the Deputy Minister of Justice, the Deputy Minister for Court Services and the general manager of the Court employed by the Minister on matters such as budgetary issues, the growth in specialized staff to support judges in their work, the digitization of Court services and operations, facilities, and the allocation of resources to adequately equip judges and Court staff. I also work with bar representatives, meeting regularly with the heads of organizations such as the Canadian Bar Association and the Law Society of Alberta and with members of the Alberta bar working in all fields of law. I have ample experience in finding solutions based on consultation and consensus.

In my role as chair of the Judicial Conduct Review Committee for several years, I was in frequent discussions with the chair of the Judicial Conduct Committee of the Canadian Judicial Council to reach a consensus on changes to the Council’s procedures governing the conduct of superior court judges. In my role as President of the Canadian Superior Court Judges Association, I also strived to come to a consensus with the Canadian Judicial Council to put forward a common position on judges’ pay and benefits.

List all publications, including online and opinion editorials which you authored or co-authored, with dates and citations or links, if available:

Co-author, Training Manual on Judicial Ethics for Moroccan judges, 2018

Co-author: “The Impact of the Canadian Charter of Rights and Freedoms on Basic Aspects of Human Existence – a Retrospective”, International Association of Judges: Books of the IAJ, Vol. 2 – Human Rights and the Judiciary, 2010

”La Charte canadienne des droits et libertés comme instrument de dialogue entre le tribunal et le législateur” [The Canadian Charter of Rights and Freedoms as Instrument for Dialogue Between the Judicial and Legislative Branches], International Journal of Canadian Studies, Vol. 36, 2007

List all presentations that you have given over the past 10 years (that are not included under Teaching and Continuing Education; e.g. presentations to members of the public, etc.):

Speech, Fédération des ainés francophones, upon my appointment to the position of Chief Justice (online), May 11, 2022

Speech, Canadian Club, “Designing an effective 21st century court”, Edmonton, April 17, 2019

Conference, Media and the Law, “Working together to improve access and public trust”, Halifax, May 11, 2018

SKILLS ASSESSMENT

1 - List and forward, in separate e-mails for each document, five decisions, legal documents (factums, etc.) or publications that you have written that demonstrate your analytical skills, your ability to resolve complex legal problems and your excellence in legal writing. Provide, below, a synopsis of no more than 300 words for each decision/document/publication and explain your reason for selecting it.

Synopsis 1:

Fédération franco-ténoise et al. v. Canada (AG), 2006 NWTSC 20, rev’d in part 2008 NWTCA 5, leave to appeal to SCC refused, 32824 (March 5, 2009)

I was the trial judge in Fédération franco-ténoise v. Canada (AG). This case was brought by the Fédération franco-ténoise and concerned the nature and scope of the language obligations of the government of the Northwest Territories and the federal government. The reasons for judgment, which are 210 pages long and written in French (and translated into English), address the history of language rights in the Northwest Territories; their geographical, demographic and social context; the efforts made to implement language rights; the alleged violations of the plaintiffs’ language rights and the defences raised; and the determination of fair and suitable remedies in this matter, including damages for violations of the Official Languages Act of the Northwest Territories. The decision also deals with several incidental issues, such as the failure to exhaust regulatory remedies, exemplary and punitive damages, public interest standing, justiciability, and the awarding of costs on a solicitor-client basis against government agencies.

I chose this judgment to illustrate my writing skills in French and my organizational and analytical skills with regard to a variety of issues.

Synopsis 2:

KS v. Willox, 2016 ABQB 483, aff’d 2018 ABCA 271, leave to appeal to the SCC refused, 38346 (April 18, 2019).

This was an action for medical malpractice brought by the guardian of a minor child against the family doctor of the child’s mother and the consulting obstetrician with regard to the child’s very premature birth. The child developed a neurological condition later resulting in developmental delays, blindness in one eye and autism. The plaintiff alleged that the doctors had breached their duty of care to the mother by failing to advise her of the availability of a medical treatment that would have prolonged the gestation period and prevented the child’s injuries. I found that the doctors were not liable for the child’s medical conditions because the plaintiff had not established a causal connection between the family doctor’s negligence and the injury to the child. I nonetheless provisionally assessed the different types of damages that might apply and concluded, among other things, that there should be no deduction related to the availability of public funding to subsidize the child’s future care since the funding’s availability was not guaranteed.

I chose this judgment because of the complexity of the scientific evidence, and to illustrate my analytical skills.

Synopsis 3:

Khadr v. Warden of Bowden Institution, 2019 ABQB 207

In 2002 at the age of 15, Mr. Khadr, a Canadian citizen, was involved in a conflict between Islamic militants and the U.S. Army in Afghanistan during which one American soldier and two interpreters were killed and another American soldier was seriously wounded.

Mr. Khadr was transferred to the U.S. Navy base in Guantanamo, Cuba, and in 2005, he was charged with murder and attempted murder under military law. In 2010, he pleaded guilty as charged and was sentenced by an American military court to eight years’ imprisonment. He was transferred from Guantanamo to a penitentiary for adults in Canada in 2012. In 2013, he brought an appeal against the military court convictions. In 2014, the Alberta Court of Appeal determined that his sentence had to be treated as a youth sentence. In 2015, he was granted interim release by a judge of the Court of Queen’s Bench pending his appeal of the military convictions. At the time of his 2019 motion for an order reducing the conditional release period from three and a half years to one day, he had already spent nearly four years on interim release subject to conditions very similar to those of conditional supervision.

Given that Mr. Khadr complied with the restrictive interim release order for nearly four years, I ordered that the period during which he had been subject to the restrictions of his interim release be credited toward the three-and-a-half-year conditional supervision period, reducing it to one day.

I chose this judgment to illustrate how I took a creative approach that was nonetheless grounded in the principles governing sentencing.

Synopsis 4:

R v. Iyer, 2014 ABQB 684

The accused, who had been charged with 40 counts of mortgage fraud, dismissed his lawyer after the preliminary inquiry. He filed an application for a Rowbotham order before the beginning of his trial by judge and jury. The trial had been scheduled to be heard over a period of 42 weeks. I, rather than the trial judge, heard the accused’s application, given that the Crown attorney expected to cross-examine the accused on his financial situation. In this case, I analyzed the evidence in a Rowbotham application and the burden of proof to be met by the accused in this sort of application. I settled the issue of whether the accused was required to prove that he had exhausted all his appeals from Legal Aid’s refusal to provide him with a lawyer. I concluded that the charges were serious because they concerned a series of frauds in the $6.5 million range involving multiple victims. The evidence was complex and voluminous. However, in light of the accused’s evidence of his financial situation, I found that he had not met his burden because he had not demonstrated a lack of financial means available to him to retain counsel.

However, I noted that the trial judge could appoint an amicus curiae to gather case law in relation to issues that could arise during the trial, provide the accused with some advice and direction, and review the judge’s final instructions to the jury.

I included this judgment because at the time, there was very little case law at the Court of Queen’s Bench level that provided in-depth analysis of the elements of Rowbotham applications.

Synopsis 5:

Loberg v. Loberg, 2021 ABQB 927

The issue to be decided in this case was whether a mediator’s report summarizing an alleged settlement between two spouses constituted a binding agreement in a divorce and division of matrimonial property. According to the female spouse, the mediation in which the parties took part was a purely voluntary process, and the mediator reached a binding agreement whose terms were fully reflected in a draft settlement agreement prepared by the female spouse’s counsel. The female spouse argued in the alternative that if the mediator’s report constituted a binding agreement, the Court should set it aside because the male spouse had failed to make full and frank disclosure of all his assets and income during the mediation process.

I concluded that the mediator’s report was a binding agreement between the spouses with regard to the division of their assets and income. The mediation agreement each of the spouses signed before going to mediation required full and frank disclosure of their assets and income. I noted the guiding principle laid down in Colucci v. Colucci, 2021 SCC 24, according to which the debtor spouse’s full and frank disclosure of information related to his income was a precondition to good faith negotiation. I found that the male spouse had breached his duty to fully and frankly disclose his assets and income, which constituted exceptional circumstances that justified setting aside their agreement. Since the female spouse had indicated her willingness to re-open negotiations, I encouraged the parties to return to mediation to resolve the issues, after making full and frank disclosure of their assets and income.

I chose this judgment to demonstrate the importance of the mediation process and disclosure in divorce cases.

2 - Describe the five (5) most significant cases or matters that you dealt with while in legal practice or as a judge and how you dealt with them:

As a lawyer

R v. Paquette: I was counsel for the accused/appellant Luc Paquette at four different levels of court between 1984 and 1990 in an application for a trial by judge and jury in French in Edmonton. At the time of the initial application before the Provincial Court of Alberta, the provisions of Part XVII of the Criminal Code had not yet been proclaimed in force in Alberta. The Provincial Court rejected the argument that section 110 of the North-West Territories Act, RSC 1886, c 50, s 110 [rep & sub 1891, c 22, s 18] was still in force in Alberta and allowed an accused to be tried by a Francophone judge and jury.

Mr. Paquette’s application to the Court of Queen’s Bench for certiorari and prohibition was granted ((1985), 63 AR 258 (QB)) and the Court confirmed his right to a criminal trial in French under section 110 of the Act. The Attorney General of Alberta appealed to the Court of Appeal, which reversed the decision of the Court of Queen’s Bench ((1988), 81 AR 12 (CA)). The Supreme Court granted Mr. Paquette leave to appeal and confirmed that section 110 of the North-West Territories Act was still in force in Alberta in relation to proceedings commenced under federal legislation which are criminal in nature or which involve penal consequences ([1990] 2 SCR 1103). The decision is an important one because it established an alternative or complementary avenue to the one under Part XVII of the Criminal Code for exercising language rights in Alberta’s criminal courts.

Mahé v. Alberta: I was counsel for the appellants before the Supreme Court of Canada in Mahé v. Alberta, [1990] 1 SCR 342. Relying on section 23 of the Canadian Charter of Rights and Freedoms, the appellants had brought an action for declarations that there was a sufficient number of children of the French linguistic minority in the Edmonton area to warrant not only instruction in French, but also a right to French-language facilities equivalent to those provided to English-speaking children out of public funds. The main issue was the degree of “management and control” of a French-language school which should be accorded to minority-language parents. In a unanimous decision, the Court established important principles concerning the remedial nature of section 23 of the Charter and found that where numbers warrant, section 23 gives parents a right to management and control over their children’s educational facilities. The degree of management and control required by section 23 may in certain circumstances justify having a separate school board. The decision served as a roadmap for the eventual establishment of Francophone school boards in Alberta and set an important precedent in Canada with regard to the interpretation of section 23 of the Charter.

Lac La Biche (Town) v. Alberta: I was counsel for the plaintiff/appellants, the Town of Lac La Biche in La Biche (Town) v. Alberta (1993), 141 AR 26 (CA). The Town of Lac La Biche filed an application with the Court of Queen’s Bench for a declaration to the effect that the legislation drawing provincial electoral boundaries, not yet proclaimed in force, violated the Canadian Charter of Rights and Freedoms. Since the date of the provincial election was fast approaching, the town also applied for an interim injunction preventing the electoral boundary legislation from coming into force before the Court could have an opportunity to rule on whether the proposed legislation was constitutional.

The Court of Queen’s Bench granted the application for an interim injunction. Shortly thereafter, the Attorney General of Alberta referred the issue of the constitutionality of the proposed legislation to the Court of Appeal and asked that the plaintiff’s application be adjourned and the interim injunction, quashed. The Court of Queen’s Bench granted the adjournment but refused to continue the interim injunction. The Town of Lac La Biche appealed against this decision. The Court of Appeal upheld the refusal to continue the injunction.

I am citing this case because it illustrates the interaction between the judicial branch and the legislative branch. The case also illustrates the ability of two different court levels to hear and decide a matter expeditiously in an urgent situation.

As a judge of the Court of Queen’s Bench

Siegel v. Siegel Estate (1995), 177 AR 282 (QB): A widow made an application under the Family Relief Act (Alta) for provision to be made out of her husband’s estate for her proper maintenance and support. In this case, in which I was the trial judge, I found that the principles enunciated in Tataryn v. Tataryn Estate, [1994] 2 SCR 807, concerning British Columbia’s Wills Variation Act applied in Alberta. I adopted an analysis based on the principles of the Divorce Act, the Matrimonial Property Act (Alta) and the legal principles governing trusts, as well as the moral obligations of testators, to determine whether the will’s provisions in favour of the testator’s widow were adequate, just and equitable in the circumstances, in light of current societal norms and values. This sort of analysis, which establishes symmetry between the rights and obligations of the spouses while they are still alive and their rights and obligations after one of them dies, provides more clarity and certainty when determining claims of this sort against a spouse’s estate. In adopting this modern approach, I thus rejected the interpretation according to which what is considered adequate, just and equitable is limited to the spouse’s bare necessities of existence.

As a deputy judge of the Supreme Court of the Northwest Territories

Fédération franco-ténoise et al. v. Canada (AG), 2006 NWTSC 20, rev’d in part 2008 NWTCA 5, leave to appeal to the SCC refused, 32824 (March 5, 2009)

SUPREME COURT OF CANADA EXPERIENCE

List all cases in which you participated as counsel which were heard by the Supreme Court of Canada (appeals as of right, references and appeals by leave) and the result (include any pending cases). You may include significant participation in a case other than as named counsel (e.g. factum review committee). If so, describe precisely the nature of your participation:

Luc Paquette v. Attorney General of Alberta - Counsel for the appellant for application for leave to appeal regarding the application of s. 110 of the Northwest Territories Act, leave to appeal granted on June 2, 1988, judgment of the Court rendered on October 2, 1990 - appeal dismissed (file SCC 20623)

Jean-Claude Mahé v. La Reine - Counsel (with Brent Gawne), application for leave granted on February 24, 1988, appeal allowed on March 15, 1990 with costs (file SCC 20590)

List all Supreme Court of Canada leave applications in which you participated as counsel and their outcome (include any pending cases):

Luc Paquette v. Attorney General of Alberta - Counsel for the appellant for application for leave to appeal on the application of section 15 of the Canadian Charter of Rights and Freedoms to language rights, application for leave dismissed on February 25, 1988 (file SCC 20734)

List all cases in which you participated as a judge which were heard by the Supreme Court (appeals as of right, references and appeals by leave) and the result (include any pending cases):

36987

Trial judge: Clinton Mahoney [C.M.] v. Her Majesty the Queen, 2015 ABQB 134, aff’d 2018 ABCA 214, motion for extension of time to serve and file application for leave to appeal denied on June 29, 2023. The Court added that even if the motion for extension of time had been granted, the application for leave to appeal would have been dismissed (SCC).

38346

Trial judge: Tim Wood, Litigation Representative of K.S., an Infant v. David Willox, et al., 2017 ABQB 2, appeal dismissed 2018 ABCA 271, application for leave to appeal dismissed April18, 2019 (SCC)

32824

Trial judge: Fédération Franco-Ténoise, et al. v. Attorney General of the Northwest Territories, 2006 NWTSC 20, reversed in part by 2008 NWTCA 5, application for leave to appeal dismissed on March 5, 2009 (SCC)

31857

Trial judge: T.L.B. v. Her Majesty the Queen, 2006 ABQB 533, appeal allowed: 2007 ABCA 61, application for leave to appeal dismissed on July 12, 2007 (SCC)

31255

Motion Judge: Deans v. Thachuk, 2004 ABQB 265, appeal allowed: 2005 ABCA 368, application for leave to appeal dismissed on April 13, 2006 (SCC)

List all cases in which you participated as a judge where leave to appeal to the Supreme Court of Canada was requested or granted and their outcome (include any pending cases):

26457

R v. Bazgan (I was on the Alberta Court of Appeal panel): 1997 ABCA 365, application for leave to appeal dismissed June 4, 1998 (SCC)

PART 10 – THE ROLE OF THE JUDICIARY IN CANADA’ S LEGAL SYSTEM

The Government of Canada seeks to appoint judges with a deep understanding of the judicial role in Canada. In order to provide a more complete basis for evaluation, candidates are asked to offer their insight into broader issues concerning the judiciary and Canada’s legal system. For each of the following questions, please provide answers of between 750 and 1000 words.

1. What would you regard as your most significant contribution to the law and the pursuit of justice in Canada?

I was a young lawyer with less than five years’ experience when Luc Paquette, a Franco-Ontarian, made an appointment with me to defend him against a charge of possession of cocaine with intent to traffic. He wanted to defend himself before a Francophone judge and jury, like his friend who was facing the same charges in Ontario. I explained to him that the language provisions of the Criminal Code entitling an accused to a jury trial in French had not yet been proclaimed in force in Alberta. I nevertheless agreed to look into other possibilities to arrive at the same outcome and discovered, in the context of provincial quasi-criminal proceedings in Alberta and Saskatchewan, a legal argument based on the North-West Territories Act, a federal statute from before the creation of those two provinces.

I represented Luc Paquette in his application at four different court levels over the next six years. The federal government proclaimed the language provisions of Part XVII of the Criminal Code to be in force in 1990, just before the appeal to the Supreme Court on the issue of whether the language provisions of section 110 of the North-West Territories Act continued to apply. My representing Luc Paquette opened other doors in my career as a lawyer, and from then on, I became involved in many language-related cases, such as:

a reference to the Court of Appeal for Saskatchewan regarding language rights under section 110 of the North-West Territories Act in which I represented the intervener, the Association canadienne-française de l’Alberta, in 1987: Reference Re Use of French in Criminal Proceedings in Saskatchewan (1987), 58 Sask R 161 (CA);
an injunction ordering that a Francophone school be opened on the Canadian Forces Base in Cold Lake, Alberta, in which the order was granted as sought, by consent of the parties, after negotiations with the Department of National Defence: Brisson-Foster v. The Department of National Defence, 1991 (Federal Court);
a declaratory order granting parents of eligible children under section 23 of the Canadian Charter of Rights and Freedoms the right to manage a Francophone school in Edmonton, in which I represented the intervener Alliance Québec, an association of English-speaking Quebecers, before the Court of Appeal of Alberta: Mahé v. Alberta (1987), 80 AR 161 (CA); and
a Supreme Court of Canada case in which I represented the appellants and which ended in a unanimous decision of the Court clarifying the nature and scope of the right to manage schools under section 23: Mahé v. Alberta, [1990] 1 SCR 342.

Over the course of my career as a judge, I presided over trials and motions in French, including an eight-week-long civil trial on services in French at several territorial government departments when I was a deputy judge of the Supreme Court of the Northwest Territories: Fédération franco-ténoise v. Canada (AG), 2006 NWTSC 20. I wrote the 210-page judgment in French, identifying and evaluating the gaps in these departments' services in French and granting the plaintiffs a variety of remedies in relation to government services.

I believe that my body of work as a lawyer and a puisne judge in the field of language rights prepared me well for my role as chief justice of an institution responsible for offering services to the public in both official languages. In my current role, I have supported the development of internal and external policies and protocols, as well as services to the public in the form of audio announcements in our hearing rooms, simplified access to information and proceedings in French, including several online forms to facilitate access to justice in French. The policy on the use of French at the Court has received province- and nationwide attention. The Court has also made efforts to communicate with the public in response to COVID-19 by issuing master orders in both official languages. Now that language provisions of the Divorce Act allowing parties to use English or French in both written and oral pleadings will very soon be proclaimed in force in Alberta, the Court is actively preparing to manage the expected increase in demand for its services in French.

When I look back at my careers to date as a lawyer, a puisne judge and Chief Justice, I believe that my greatest contribution to the law and the pursuit of justice in Canada was to improve access to justice in both official languages in government institutions and the courts.

2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?

My experiences in four aspects of my personal and professional lives have given me greater insight into the diversity of Canadians and their unique perspectives, and into the importance of diversity in respect of access to justice:

as a member of a minority language and cultural group;
in a professional world where men were in the majority;
as a judge involved in international development programs;
as a trial judge who has worked in all fields of law; and
as Chief Justice, responsible for championing diversity, inclusion and access to justice in my court.

French Canadian music, literature, traditional songs and celebrations enriched my life growing up in the West. I learned the importance of my language in giving a voice to my culture, and of my culture in instilling in me a sense of belonging and identity. I also experienced the challenges that come with belonging to a minority group in a majority Anglophone province. My access to instruction in French was limited by provincial regulations to 50 percent of the time. As a lawyer with a French-speaking clientele, I demanded the right to be educated and to be judged by one’s peers in French. These experiences showed me that an educational system or a justice system that respects the diversity of its members will gain their trust and respect.

Women accounted for barely a quarter of my Law class at the University of Alberta. They also were in the minority in criminal law practice and held only about a quarter of the positions as judges of the Court of Queen’s Bench. I had to constantly prove my professional abilities to be accepted in this field. Today, we have almost reached parity. The elimination of barriers and greater openness to women’s perspectives in the legal profession, as lawyers and judges alike, have had a significant impact on access to the profession and on access to justice for women, so that they can see themselves reflected in the courts that serve them.

In my work as judge on the Criminal Law Study Commission of the International Association of Judges, I often acted as an interpreter for French-speaking judges from Africa in order to include them in our discussions. Working as an instructor teaching ethics to judges in Morocco, Ukraine and Mongolia, I came to realize that Canada is internationally known for its respect for equality and human dignity. I was moved by the struggle in a number of countries to create a justice system accessible to all, especially to members of vulnerable and marginalized groups.

As a trial judge for 23 years before becoming a chief justice, I developed an appreciation of the challenges related to access to justice, especially in matrimonial litigation, where language or cultural barriers arise in a setting that is often emotionally charged. Training programs offered by the National Judicial Institute on social context and my own experience in the courtroom have made me aware of the need to respect and value diverse perspectives. As a judge sitting throughout the province, from High Level in the north to Medicine Hat in the south, I learned that one must not only identify but also respect differences in culture and attitudes between urban centres and rural areas, and that it is critical that the institutions of the justice system be present and visible in rural communities. My experience outside Alberta as a deputy judge in the Northwest Territories and in Yukon has also shown me the enormous challenges faced by Indigenous communities to preserve their cultures and languages.

In my current role as Chief Justice, I recognize the importance of diversity and inclusion. A chief justice has a duty to foster access to justice and respect for diversity among all members of the Court. The Diversity, Inclusion and Access Committee, an internal committee of the Court, is a group of judges and lawyers who are responsible for encouraging their colleagues to participate in various projects and events to increase their cultural competency. In the last few years, we have organized training sessions on the importance of including the 2SLGBTQI+ community to educate judges on inherent barriers to access for that community, as well as the importance of respecting gender identity and the choices of preferences of each person. Recently, the Court adopted a gender-neutral approach to addressing the judges of our Court. Eagle feathers are now available in each of the Court’s 13 court locations as an alternative for Indigenous people to use in taking oaths. There are courtrooms in the Edmonton and Calgary courthouses that are designed for smudging ceremonies, and plans are under way to make this available at all court locations in Alberta. “The Path — Your Journey Through Indigenous Canada,” a five-module program on Indigenous cultural competency, has been made available to the judges of the Court. To mark the National Day for Truth and Reconciliation each year, the Diversity Committee offers judges and Court staff a variety of programs to develop and increase their cultural humility.

In a court where Indigenous accused are overrepresented, it is important that judges have a sound knowledge of s. 718.2 of the Criminal Code, the principles in Gladue and the recommendations of the Truth and Reconciliation Commission. These topics are included in the training programs for Court of King’s Bench judges.

I believe that my personal and work experience has helped me to understand the importance of diversity and inclusion in Canada’s justice system. All Canadians should be able to see themselves reflected in their justice system in order to have faith in it.

3. Describe the appropriate role of a judge in a constitutional democracy.

The role of judges is to settle cases brought before them on the basis of the facts, in accordance with the law and in a manner free of bias. Judges carry out their duties in an environment that protects their ability to make judgments free from any influence. Their term of office, remuneration and conditions of service are secured by law. The three characteristics of judicial independence — security of tenure, financial security and administrative independence — gives people confidence that the judge hearing their case will render justice impartially. Absent these assurances, the rule of law, which is the cornerstone of a democracy, could collapse. To comply with the rule of law, governments must act within the constraints of the law, in accordance with the values of democracy and basic constitutional principles, and under the supervision of independent and impartial courts.

Constitutional principles include federalism, democracy, constitutionalism and the rule of law, and respect for minorities; these principles function in symbiosis: Reference re Secession of Quebec, [1998] 2 SCC 217. As the Court observed, no single principle can be defined in isolation from the others, nor does any one principle trump or exclude the operation of any other.

An important and exclusive aspect of the role of judges in a democracy is to determine whether the laws or actions of the legislative or executive branch of government violate the provisions of the Canadian Constitution. For example, under s. 24(2) of the Canadian Charter of Rights and Freedoms, a trial judge in a criminal proceeding may exclude evidence that was obtained in a manner that infringed or denied any rights or freedoms guaranteed by the Charter, if it is established that, having regard to all the circumstances, the admission of the evidence in the proceedings would bring the administration of justice into disrepute. The purpose of s. 24(2) is to compel government authorities to respect the provisions of the Charter. Judges must objectively consider the long-term effect of using evidence, taking into account the relevant circumstances and Charter values. By applying this curative provision, judges prevent disrepute to the justice system and strengthen public confidence in the rule of law.

Judges also have an important role under s. 24(1) of the Charter, which provides that anyone whose Charter rights have been infringed as a result of a government action or decision may obtain a remedy that is appropriate and just in the circumstances. In a criminal case, the remedy may involve a stay of proceedings, a remedy of last resort. In a civil case, the judge may grant declaratory or injunctive relief for government action that violates the Constitution. However, an appropriate and just remedy must respect constitutional principles and not exceed the court’s jurisdiction. The judge’s approach must remain flexible and responsive to the needs of a given case: Doucet-Boudreau v. Nova Scotia (Minister of Education), 2003 SCC 62, at paras 56–58.

Superior court judges also have the important power to determine whether a statute or regulation is inconsistent with the Canadian Constitution under s. 52(1) of the Constitution Act, 1982. These judges may declare that a statute or regulation or an aspect thereof is, to the extent of the inconsistency, of no force or effect, while preserving the application of the aspects that are constitutional.

The powers of judges under ss. 24(1), 24(2) and 52(1) of the Constitution Act, 1982 prevent government agencies from violating human rights, which are central to democracies. Judges exercise their decision-making power in accordance with constitutional norms, principles of statutory interpretation and the decisions of the Supreme Court of Canada and courts of appeal.

A power specific to appellate courts and the Supreme Court of Canada is reference power. This involves giving the Court’s opinion on the constitutionality of legislation, in response to a request by the federal government or a provincial or territorial government. The opinions of these courts may confirm amendments to legislation to make it consistent with the Constitution. This special interaction between the judiciary and the legislative branch is often described as a kind of dialogue.

Given the important role of judges in democracies, constant changes in society and the dynamic nature of the law, judges have a responsibility to hone their legal and social context knowledge to ensure respect, fairness and dignity for all members of society and to clearly and definitively eliminate myths and stereotypes.

4. Who is the audience for Supreme Court of Canada decisions?

The audience for Supreme Court of Canada decisions is broad and diverse because its decisions have a significant impact on all sectors of Canadian society and all aspects of life. Ruling on constitutional values, principles and rights such as equality, protection against unreasonable search and seizure, the right to silence and the division of powers, the Supreme Court addresses questions of great importance and plays an active role in the interpretation and evolution of law in Canada. Its decisions have tangible effects on government legislation and actions, social order and private life. Understanding how cases make their way up to the Supreme Court helps to appreciate the immensity and diversity of its audience.

Generally, civil and criminal disputes cannot be heard by the Supreme Court unless it grants leave to appeal.

The Court also hears appeals directly from provincial and territorial courts of appeal in the limited circumstances set out in sections 691 to 693 of the Criminal Code, for example, when the acquittal or conviction of the accused has been upheld by a court of appeal, but with a dissenting opinion.

Leave to appeal is a mechanism that limits access to the Court to cases that are of central importance to an audience larger than just the parties. For example, the details of an action in divorce are of no interest to the general public, but how the criteria of the Child Support Guidelines are to be interpreted is of interest not only to the parties to the dispute, but to all separated parents. The Court’s tax decisions and contract decisions are important to both large and small businesses. Its clarifications of points of law or statutes that have been the subject of contradictory decisions help judges of first instance resolve disputes with consistency. The Court’s decisions clarifying the state of the law in a particular field of legal practice are addressed to counsel and promote the settlement of existing and future disputes.

A decision by the Court can have a significant impact on the parties, but also well beyond the parties. In R v. Moore and Oag, [1983] 1 SCR 658, the Court heard an appeal in a habeas corpus case from a decision by the correctional authorities denying parole to a federal prisoner at the time of his statutory release date after he had served two thirds of his sentence. The Court granted leave to appeal and set an early hearing date. The Court overturned the decision of the Alberta Court of Appeal and ordered, from the bench, the appellant’s immediate release. Following this, Parliament passed legislation governing the conditions under which the correctional authorities could exercise this exceptional power.

The Supreme Court’s decisions also speak to jurists, law students and the general public, who make up not only today’s audience, but also tomorrow’s. When addressing this audience, the Court must explain the legislation, case law, facts, values and social context so that its reasons will be clear and intelligible not only at the precise moment the judgment is issued, but also for years into the future.

Another important gateway to the Supreme Court takes the form of a reference under the Supreme Court Act. The Court expresses its opinion on a series of questions asked by the Governor in Council regarding the constitutionality of a statute.

In reference cases, the Supreme Court of Canada is primarily addressing Parliament or the provincial and territorial legislatures when expressing an opinion about the constitutionality of a statute. The reference has been described as a type of “dialogue” between the judicial and legislative branches of government that serves to prevent problems of interpretation or the future exposure of legislative gaps. Governments and sectors of the public affected by the legislation benefit from this unique form of consultation between legislators and the Court.

Appeals as of right not requiring an application for leave to appeal also have an influence that reaches beyond the interests of the parties to the dispute. An appeal as of right exists in cases involving criminal acts when the conviction or acquittal of an accused has been upheld by the court of appeal, but with a dissenting opinion on a question of law, or involving any question of law when the court of appeal convicts following an acquittal. The outcome of the appeal as of right affects not only the interests of the parties to the case, but also has precedential value, binding courts across Canada and clarifying the state of the law with respect to the issues raised in the case. Therefore, judges at all levels also form part of the audience.

In short, the Court, in each of its judgments, is addressing a much wider audience than the parties to the case alone. Its decisions constitute important roadmaps for counsel, their clients, trial courts and courts of appeal, government agencies and the general public.

5. To what extent does the role of a Supreme Court of Canada Justice allow for the reconciliation of the need to provide guidance on legal questions of importance to the legal system as a whole with the specific facts of a case which might appear to lead to an unjust result for a party?

To answer this question, I believe it is first necessary to draw a distinction between the role of trial judges and that of appeal court judges. Having served may years as a trial judge, I have observed first-hand that in individual cases it is possible to render justice in a more predictable manner when the courts of appeal establish clear analytical frameworks that can be applied to a wide range of factual situations.

The common law justice system applicable in my province is largely based on a series of precedents established by previous judgments of courts of appeal dealing with similar situations. These principles support and justify the decision of the trial judge.

Trial judges make their findings of fact after considering the evidence presented and apply the legal rules and principles as laid down by the legislation and case law. Trial judges are bound, by the principle of stare decisis, to apply the legal rules and principles previously set out in decisions by the courts of appeal and the Supreme Court of Canada. The duty of impartiality and the duty to do justice to the parties to the dispute also require judges to decide based on the evidence and the relevant legal principles, not based on an outcome that they personally consider more equitable, regardless of the precedential or statutory rules. The public could not have confidence in a system of justice that allows judges to abrogate their duties of objectivity and of respect for the law.

The role of judges of the Supreme Court of Canada is larger in scope. They are not only responsible for rendering justice to the parties to the dispute in accordance with the applicable standard of review, but they must also keep in mind the longer-term interests of society, including the promotion of equality, social stability and respect for the rule of law. This dual perspective enables Supreme Court judges both to establish universally applicable legal rules and to render justice to the parties to the dispute.

The development by the Supreme Court of Canada of the jurisprudence with respect to section 276 of the Criminal Code (R v. Barton, 2019 SCC 33; R v. Goldfinch, 2019 SCC 38) is an example of how the development of principles is influenced by the social norms of equality and fundamental justice guaranteed by the Canadian Charter of Rights and Freedoms. These principles assist trial judges in determining the fair and appropriate scope of cross-examination of complainants with regard to sexual acts other than those at the origin of the charge. The Supreme Court confirmed the importance of balance between the accused’s right to a fair trial and a full answer and defence and the complainant’s right to privacy and not to be deprived by the criminal process of their human dignity. This is accomplished, in part, by limiting the scope of investigations into their sex life when they fall outside the allegations underlying the charge. By clarifying the scope of cross-examination, the Supreme Court developed principles that trial judges can use to render justice in individual cases. This analytical framework does not have the effect of depriving the accused of their right to a fair trial. It takes into account all of the people involved in the process and societal norms, thereby limiting the cross-examination to evidence that is truly relevant and on which we rely with a purpose other than to support inferences based on myths or stereotypes.

The Supreme Court of Canada’s development of the principle of the duty to act in good faith in analyzing contractual obligations (Bhasin v. Hrynew, 2014 SCC 71) is another example of the development of a general guiding principle that recognizes the importance of the principle in the larger commercial context: “Commercial parties reasonably expect a basic level of honesty and good faith in contractual dealings” (para 60). In that case, the Court stated that steps needed to be taken to make the common law more coherent and more just in contractual matters. Justice Cromwell noted at para 83 of his judgment, written on behalf of the Court, that the Civil Code of Quebec recognizes a broad duty of good faith that includes a duty of honesty in contractual performance. The overall guiding principle of good faith that exists in both common law and civil law therefore helps trial judges render justice in specific cases.

The Supreme Court has also contributed to the stability and coherence of the law of evidence by setting out a list of factors to consider when determining whether evidence is admissible. For example, similar fact evidence is presumed to be inadmissible except in certain limited contexts. The Court proposed a series of questions (R v. Handy, 2002 SCC 56) intended to guide the analysis of the admissibility of this exceptional type of evidence and adopted a normative and objective approach, reflecting the interests of justice.

This is how the Supreme Court guides the development of the law while at the same time respecting the need to render justice to the parties to the dispute.

[...]

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The Honourable Mary Moreau's Questionnaire

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