The Honourable Glenn D. Joyal's questionnaire
Under the Supreme Court of Canada Judicial Appointments Process and the announcement made by the Prime Minister on May 19, 2026, 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 candidates and submit a list of individuals for consideration by the Prime Minister. 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 Glenn D. Joyal (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 Manitoba Bar in June of 1987
- Member of The Law Society of Manitoba
- I ceased to be a member of the Bar upon my initial appointment to the Bench (the Manitoba Provincial Court) in 1998.
Judicial Experience (if applicable):
(Include all dates of appointment)
As set out below, my experience includes almost 28 years of judicial service and almost 18 years in positions of court leadership where, along with the performance of my duties as chief justice, I continue to preside regularly on significant criminal, constitutional, civil and administrative matters in both English and French. l feel privileged to have had the unique opportunity of sitting in every Manitoba court at all three levels of the Canadian justice system.
- Chief Justice of the Manitoba Court of King's Bench (Manitoba's Superior Court) - 2011
- Associate Chief Justice of the Manitoba Court of King's Bench - 2009
- Justice of the Manitoba Court of Appeal - 2007 (sitting most recently on appellate panels in an ad hoc capacity in December 2022 and January 2023 due to unfilled vacancies in the Court of Appeal)
- Judge of the Manitoba Provincial Court - 1998
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:
- Oxford University - 1995-96 - Political Theory and Constitutional Law - While counsel with the Federal Department of Justice, and in connection to a self-funded academic sabbatical, I was admitted into the prestigious Oxford Dphil program (the Oxford doctorate) to study under the supervision of the late Dr. Geoffrey Marshall, a leading U.K. constitutional theorist. Regrettably, after finishing my first year at Oxford, I was unable to complete my Dphil due to an unexpected family emergency and my eventual obligation to return to my duties with the Federal Department of Justice, which return was incompatible with the Oxford University's residency requirement.
- University of Manitoba - M.A. - 1991-93 - Political Science - Thesis awarded "with distinction" (Completed while working full time as a federal prosecutor with the Federal Department of Justice)
- University of Manitoba/McGill University- LL.B. - 1983-86 (I attended McGill University for my final year of law school for the purpose of more fully exposing myself to their civil law and international law curriculum)
- Scuola Dante Aligheri - Venice, Italy - 1986 - Certificate of Italian Language, Culture and Civilization *
- Instituto di Lingua Cultura Italiana Michelangelo - Florence, Italy - 1985 - Certificate of Language and Culture *
- Université de Paris - Sorbonne - 1982-83 - Civilization, Literature and History
- Simon Fraser University (Vancouver, B.C.) - B.A. - 1978-81
- St. Paul's Jesuit High School - 1974-78
(*My attendance at these institutions in Italy enabled me to become trilingual)
Continuing Education:
In my almost 28 years as a sitting judge, I have learned from, participated in and taught at various and innumerable ongoing courses in the continuing legal education provided to judges by the National Judicial Institute and the Canadian Institute for the Administration of Justice. Further details can be found at page 7 respecting the question concerning my teaching and continuing education activities with NJI and CIJA and other connected legal organizations.
In addition to the above, I have attended the Sessions en terminologie juridique en français, an annual course for francophone or advanced bilingual judges residing outside of Quebec (largely educated at English-speaking Common Law faculties of law) who wish to maintain and perfect a level of precision in their juridical French language skills.
Academic Awards:
- Master's degree and thesis was awarded the designation "with distinction"
- Sarah and Moses Cohen Prize for academic achievement in International Law
- Awarded the Rotary Academic Scholarship (for graduate studies) in 1994, which I chose not to accept
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 Manitoba Court of King's Bench (Manitoba's Superior or Supreme Court) - 2011 to present
- Associate Chief Justice of the Manitoba Court of Queen's Bench - 2009 to 2011
- Justice of the Manitoba Court of Queen's Bench - 2007 to 2009
- Justice of the Manitoba Court of Appeal - 2007
- Judge of the Manitoba Provincial Court- 1998 to 2007
- Counsel with Wolch Pinx Tapper Scurfield - 1997 to 1998
- Federal prosecutor and litigation counsel with the Federal Department of Justice - 1990 to 1997
- Crown prosecutor with the Manitoba Department of the Attorney General - 1986 to 1990
Non-Legal Work History:
- Canadian Broadcasting Corporation (CBC) - April to September 1982, and April to September 1984
- Canadian National Railway (CNR) - April to September 1980
- Langley Finishing Mill (while at Simon Fraser University in Vancouver, B.C.) - October to December 1979
- McKewan's Landscaping - April 1978 to September 1978
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.
- Judicial member of the Canadian Bar Association
- Member of the Canadian Judicial Council (CJC) since 2009
- Member or past member of the following CJC committees:
- Executive Committee (current senior member)
- Appointed Vice-Chair of the CJC by Chief Justice Richard Wagner and served from 2019 to 2022 and reappointed by the Chief Justice for an additional three-year term as First Vice-Chair of the CJC commencing September 2023
- Current Chair of the Judicial Conduct Committee (first appointed by former Chief Justice Beverley McLachlin and reappointed by Chief Justice Wagner) - current Senior Member
- Chair of the Superior Court Trial Courts Forum
- Chair of the Nominating Committee
- Governance Committee
- Public Information Committee
- Administration of Justice Committee
- Organizational Structure Review Committee
- Committee on Efficient Access to Justice and Case Management Models in Superior Courts
- Member of the National Steering Committee on Justice Efficiencies and Access to the Criminal Justice System (the Steering Committee was created by the federal government in 2003 and includes federal and provincial deputy ministers responsible for justice, representatives from court leadership, the Canadian Bar Association, the Barreau du Quebec, a representative from the Canadian Council of Defence Lawyers and representatives from the police community). In relation to this committee, I am currently chair of the sub-committee charged with issues related to the Application of the Open Court Principle in Virtual Hearings. The important work of this committee focussed on the privacy and security rights of victims and other vulnerable witnesses who give virtual testimony in criminal proceedings and the potential benefits and challenges that may arise in this context. The next stage of the committee's work will focus on more specific "due process" and "integrity of the hearing concerns".
- Member of the Manitoba Courts Executive Board
- Past Chair of the Working Group charged with enhancing both the judicial space and French language judicial services offered in St. Boniface by both the Manitoba Court of King's Bench and the Provincial Court of Manitoba ("Groupe de travail chargé d'élaborer une proposition pour la reconfiguration des services et de l'espace physique au palais de justice de Saint-Boniface")
- Ad hoc member on all internal committees of the Manitoba Court of King's Bench
- Past member of the Manitoba Provincial Court Management Committee
- Past member of the Winnipeg Federal Department of Justice Litigation Committee
- Past member of l'Association des juristes d'expression française du Manitoba
Pro Bono Activities:
- Prior to my initial appointment to the judiciary and during my time as a federal prosecutor and civil/litigation counsel, I volunteered to work with students at the University of Manitoba Legal Aid Clinic.
- The Manitoba Court of King's Bench sponsors a "judge shadowing" program via the University of Manitoba Faculty of Law by which students get an early and personal exposure to the many challenging areas of adjudication that occur within the diverse jurisdiction of the court.
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).
National Judicial Institute and Canadian Institute for the Administration of Justice: past panelist, speaker or instructor (in both English and French) and/or member of various organizing committees in respect of a number and variety of NJI and CIAJ courses and conferences. These courses or conferences have taken place across Canada on legal subjects that range from the substantive law and rules of evidence to topics in relation to systemic change and reform as well as issues of judicial leadership, judicial independence, judicial conduct and ethics, and the institutional issues of inclusion and judicial reconciliation.
I also teach twice a year at the NJI/CIAJ week-long course for new federally appointed judges (in September and April, respectively)
University of Manitoba: guest lecturer at the Faculty of Law and the Department of Political Science
University of Winnipeg: guest lecturer at the Department of Political Science and the Department of Sociology
Community and Civic Activities:
(List all organizations of which you are a member and any offices held (with dates).
- St. Paul's Jesuit High School Board of Governors - 2012 to 2019
- Winnipeg Foundation Nominating Board - 2011 to present
- Balmoral Hall School Board of Governors - 2010 to 2014
- St. Mary's Academy - Past Chair, Vice-Chair and member of the Board of Directors - 2001 to 2007
- Théâtre Cercle Molière - past member and Vice-President of the Board of Directors - 2000 to 2012
- Manitoba Arts Council - 2013 to 2015
- Manitoba Law Foundation - 1997 to 1998
- Winnipeg Library Board of Directors - 1991 to 2001
Honours and Awards:
- Queen Elizabeth II's Platinum Jubilee Medal (2022) in recognition of outstanding public service and valuable contribution to the Province of Manitoba
- King Charles III Coronation Medal (2024) in recognition of significant contributions as Chief Justice to court modernization and reconciliation efforts with Indigenous communities
PART 7 - LEGAL EXPERIENCE AND EXPERTISE
List and explain your areas of legal expertise:
My principal areas of expertise are in the areas of criminal and constitutional law.
I have extensive experience in the substantive criminal law (and, by extension, the rules of evidence and procedure) as a result of my years as a provincial and federal prosecutor as both trial and appellate counsel. My prosecutorial work involved a number of challenging and high profile cases. My contact with the criminal law continued during my many years as a presiding judge, in both Manitoba's provincial and superior courts, and as well, during my much briefer period in the Court of Appeal. It should be noted that the work of the Manitoba Provincial Court is almost entirely in the area of criminal law. In short, I have been engaged in one way or another in criminal law for over 40 years. In the end, as counsel and/or as a presiding judge, I have been involved in almost 50 jury trials and countless judge-alone trials.
As it relates to my expertise in constitutional law, it is rooted in my judicial, professional and academic experience. In my years as a presiding judge in both the provincial and superior courts of Manitoba, I have encountered a number of different and complex constitutional issues, both in the form of division of power issues, challenges to the constitutionality of statutes, issues relating to the honour of the Crown and the duty to consult, and as well, the countless number of issues that regularly arise in the context of criminal trials where accused persons invoke their legal rights as set out in the Charter. As a presiding judge, I have been required to utilize the now well-established interpretative approaches in both interpreting and determining the scope of a Charter right prior to its application to a given set of facts. (See most recently my rulings respecting the constitutionality of protective COVID-19 public health measures in Gateway Bible Baptist Church v. Manitoba, 2021 MBQB 218.) In short, I have made innumerable rulings involving the Charter. Prior to my judicial career, both as a federal and provincial prosecutor, and as a federal Department of Justice lawyer generally, I had occasion to work not only with the Charter's legal rights, but also in relation to those rights which were at the basis of various Charter challenges against which I was required to defend as counsel on behalf of government. For example, I was counsel at trial in the case of Sauvé v. Canada (Chief Electoral Officer), [1996] 1 F. C. 857, a case involving a constitutional challenge to the federal government's limitation on the prisoner's right to vote where that prisoner was serving two years or more in prison. Additionally, I was involved in the case of Archibald v. Canada, [1997] 3 F.C. 335, as defending counsel against a constitutional challenge (on the basis of ss. 2, 6 and 15 of the Charter) to The Canadian Wheat Board and its monopoly as a single-desk seller of Canadian wheat. Those cases involved the formulation of complex defenses built on a number of expert witnesses who adduced highly relevant, social scientific evidence. Respecting my expertise in constitutional law, I invoke finally, my academic experience. In that regard, I note that my Master's degree was focussed specifically on the Charter of Rights and its interaction with Canadian political culture. Moreover, my studies at Oxford University were in the area of constitutional law and political theory. My studies in political theory allowed me to explore many of the foundational concepts in normative political philosophy and rights theory which underlie much of the constitutional jurisprudence in most liberal constitutional democracies. While at Oxford, I had the privilege of attending seminars with such scholars as Ronald Dworkin, Barnard Williams, Joseph Raz and John Gray. My supervisor at Oxford was the late Dr. Geoffrey Marshall, the well-known U.K. expert and theorist in constitutional law. My specific research with Dr. Marshall was in relation to the doctrine of the margin of appreciation. That doctrine was developed by the European Court of Human Rights in an attempt to reconcile the requirements of the European Convention with some of the peculiar and practical differences and diversity amongst contracting states.
List and explain other legal areas that you have experience in:
Given that the Manitoba Court of King's Bench is a generalist court dealing with all manner of criminal, civil, constitutional, administrative, family and Indigenous matters, judges are required to preside in a wide array of various areas of the law. In addition to my involvement in the criminal and constitutional law matters that I discussed above, I regularly preside in civil and administrative law cases. Some of those matters involve overseeing complex case management proceedings in high-profile, large, multiple-party civil/commercial disputes where I hear all of the many pre-trial motions (of whatever sort) that need be adjudicated on preliminary matters. See for example, the Extradition Proceedings re Peter Nygard - Judges Report re s. 38 of the Extradition Act, October 1, 2021; Winnipeg (City) v. Caspian Projects Inc., 2022 MBQB 53; Sensible Capital Corp. v. Galton Corp., 2020 MBQB 159; Christie Building Holding Company, Limited v. Shelter Canadian Properties Limited, 2022 MBQB 239; EllisDon Corporation v. Winnipeg Airports Authority Inc., 2013 MBQB 280; and Her Majesty the Queen in Right of the Province of Manitoba v. Rothmans, Benson & Hedges Inc. et al., 2013 MBQB 157; and 2014 MBQB 160. In addition to the work that arises from the various civil motions in the course of case management, I also regularly preside at trials in civil cases in areas as diverse as medical negligence (Campbell et al. v. Jones et al., 2016 MBQB 10); intellectual property (Pioneer Hi-Bred International,
Inc. v. Richardson International Limited, 2010 MBQB 161), shareholder and oppression remedies (Matthews Investments Ltd. et al. v. Assiniboine Medical Holdings Ltd. et al., 2007 MBQB 245; and Sparco Holdings Inc. et al. v. Willdamerle Holdings Ltd. et al., 2010 MBQB 203), class actions, and judicial reviews in connection to issues respecting the honour of the Crown and the duty to consult (Tataskweyak Cree Nation et al. v. Canada (A.G.); Curve Lake First Nation et al. v. Canada (A.G.), 2021 MBQB 275) involving the historic and unprecedented $8 billion settlement agreement addressing compensation and future infrastructure for First Nations individuals and communities who had not had safe drinking water for many years; Interlake Reserves Tribal Council Inc. et al. v. Manitoba, 2022 MBQB 131; Pimicikamak et al. v. Her Majesty the Queen in Right of Manitoba et al., 2014 MBQB 143; Pimicikamak et al. v. Her Majesty the Queen in Right of Manitoba et al., 2016 MBQB 128); and Chief Heidi Cook et al. v. Government of Manitoba et al. (currently uncited, citation to follow the release of a lengthy judgment the week of May 4, 2026), a unique and complex class action brought by a number of First Nations against Manitoba and Canada impugning Manitoba's child welfare system, alleging numerous Charter breaches, common law breaches, and a breach of s. 35 of the Constitution Act (issues of certification and summary judgment).
As noted, my experience also includes many administrative law cases where I have presided over more traditional complex judicial reviews involving the application of any of the appropriate and applicable various standards of review now clarified by the Supreme Court of Canada in Canada (Minister of Citizenship and Immigration) v. Vavilov, 2019 SCC 65.
List all publications, including online and opinion editorials which you authored or co-authored, with dates and citations or links, if available:
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.):
As either chief justice or associate chief justice, I have given a countless number of presentations to The Law Society of Manitoba and to the Manitoba Bar Association in both official languages on various substantive, evidentiary and procedural topics. I have also presented on the subject of judicial independence and legal and judicial ethics. I have over the last 15 years presented extensively in continuing legal education sessions in respect of the Court of King's Bench's new Case Flow Scheduling Models in the areas of the court's criminal, civil, child protection and family law reforms.
As chief justice or associate chief justice, I have spoken on innumerable occasions to legal organizations and/or broader members of the public in a variety of fora on such topics as access to justice, the judicial role, judicial independence and the administration of justice generally. Some recent, but limited examples include: The 2026 Thomas Feeney Memorial Lecture "The Paradox of Judicial Independence: A Framework for Exploring Issues in Judicial Ethics, Judicial Freedom and Judicial Conduct" (University of Ottawa - February 2026); presentation at the CCLA Third Annual Equity Conference (Ottawa - February 2026); keynote speaker at the October 2025 Annual CALE Conference (Canadian Association for Legal Ethics); Federation of Law Societies of Canada October 2025 Annual Conference "Democracy in the Crosshairs: Threats to the Independence of the Legal Profession” (perspectives from the Judiciary; lecture at the University of Guelph (February 2026); the Canadian Bar Association's Courting Confidence: Preserving Trust in Judicial Independence (Ottawa, ON, July 2023); two appearances before the National Action Committee on Court Operations in response to COVID-19 (the first appearance addressed minimizing backlog and delays in child protection and family proceedings (Ottawa, ON, March 11, 2022); and the second appearance addressed my work respecting the Open Court Principle in virtual hearings (Ottawa, ON, April 21, 2023); The Advocates' Society "The Impact of Jordan - Achieving Timely Justice" (fall conference 2017, Nashville, TN); The Advocates' Society "The Fearless Advocate: Litigating Polarizing Issues" (April 2021); presentation to the judges of the Quebec Superior Court and Quebec Court of Appeal (in French) "The Challenges and Opportunities of Judicial Reconciliation: One Court's Modest But Realistic Efforts" (Quebec City, QC, October 2019); panelist and speaker at Queen's University Faculty of Law - Judicial perspective on Professor Gregoire Webber's "Legislative Rights: Security Human Rights Through Legislation" (Kingston, ON, November 2018); delivered a speech entitled, "Reimagining Access and the Role of Chief Justice: Challenges and Opportunities in Changing Systems and Shifting Culture" (Pitblado Lectures Series, Winnipeg MB, November 2018); speech at Hart House, University of Toronto on the Charter and Canada's transformed political culture (Toronto, ON, October 2017); and chaired panel at "150 Years of Legislative and Judicial Bilingualism: History and Current Trends" (in French and English) (Ottawa, ON, March 2017). Panelist and presenter at The Law Society of Manitoba’s “Reflections from the Bench on the Practice of Law in French” (in French) (Winnipeg, MB, May 25, 2022). A number of presentations since 2017 to various Manitoba Indigenous community members, Chiefs and Elders respecting the work of Manitoba's Court of King's Bench's Trust, Reconciliation and Access to Justice Committee (TRAC); and co-chair and panel participant in the Issac Pitblado Lecture Series: "Legal Boundaries in a Global World" (Winnipeg MB, November 2012).
In addition to all of the above, I have made myself available on many occasions to the English and French media by, amongst other things, participating in joint press conferences with the other chief justices and presenting myself for questioning at editorial boards. I have also been in various one-on-one interviews in both television, radio and print media. For example, in the February 27, 2017 episode (archived online) of the CBC Radio program "The Current", I was interviewed by Anna Maria Tremonti respecting the question of delays in criminal trials and the made-in-Manitoba proposal to replace the preliminary inquiry with an out-of-court discovery process. In addition to my outreach with CBC and Radio-Canada, I have been interviewed by CTV, Global TV, the Winnipeg Free Press, The Globe and Mail, the Toronto Star and The Lawyers Weekly (now Law 360). The most recent interview was in Law 360 (July 2023) in relation to the Court of King's Bench practice direction requiring counsel and/or litigants to disclose if and where they have used artificial intelligence (Al) in preparation of any of their court materials. Similarly in 2025, an appearance on "Verdicts & Voices" (the CBA Legal Podcast hosted by Alison Crawford) speaking with the Honourable Leonard S. Marchand, Chief Justice of British Columbia on "Reconciliation in the Courtroom".
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:
Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 218
Gateway Bible Baptist Church et al. v. Manitoba et al., 2021 MBQB 219
While this matter appears to present as two separate cases with somewhat distinct issues (constitutional and administrative), they are in fact one case and it involves the same constitutional challenge. The challenge required the court to address (following a multi-week hearing that included the viva voce evidence involving many medical and scientific experts), the constitutionality of some of the provincial public health orders (and the administrative delegation of authority to the chief public medical officer) that responded to the ongoing and persistent COVID-19 pandemic. The challenge based on the alleged Charter violations and involving the accompanying s. 1 defence by the government, was the first case in Canada where a court was required to consider a direct challenge to the scientific evidence upon which public health measures were based. In both applications, I upheld the public health orders in respect of both their constitutional and administrative validity. My decision to uphold the public health orders on both constitutional and administrative law grounds was affirmed on appeal (see Gateway Bible Baptist Church et al. v. Manitoba et al., 2023 MBCA 56).
Synopsis 2:
Patient v. Attorney General of Canada et al., 2016 MBQB 63
This judgment addressed an application that involved the first physician-assisted death in Manitoba. It was, at the time, only the third such application in Canada.
The applicant was an adult who suffered from and was in the final stages of two terminal diseases. As a consequence of those diseases, the applicant was living with an enduring and unbearable pain. The applicant's health was rapidly deteriorating and had likely no more than one month to live. The applicant sought to end his/her life by means of a physician-assisted death pursuant to the Supreme Court of Canada judgment in Carter v. Canada (Attorney General), 2016 SCC 4, [2016] 1 S.C.R. 13. It was a case where the unopposed and unchallenged affidavit evidence on the application demonstrated that the applicant's family, attending physicians and psychiatrists all supported the application.
In addition to the order sought that would allow the applicant to receive physician-assisted death, the applicant also sought a confidentiality order to protect the identi[t]y of the applicant, the applicant’s family, any physicians, pharmacists, social workers or other health care professionals who provided assistance to the applicant.
Given the orders that were being sought, I was required to address two questions on the application: First, should the court make a confidentiality order to protect the identity of the applicant, the applicant's family, and any physicians, pharmacists, social workers or other health care professionals who provided assistance to the applicant? Second, had the applicant established that he or she met the criteria set out in Carter v. Canada (Attorney General), 2015 SCC 5, [2015] 1 S.C.R. 331 (Carter 2015), qualifying for the constitutional exemption granted by the Supreme Court and thereby allowing the applicant to receive a physician-assisted death?
I note that this application was made while anticipated federal legislation had yet to be put in place. In the absence of legislation, the parameters for the remedies sought, including the scope of the order of confidentiality, had to be determined by an exercise of informed judicial discretion. As explained in the judgment, I answered both the identified questions in the affirmative.
Synopsis 3:
R. v. Skibicki, 2024 MBKB 113
This case involved an accused serial killer who had confessed to the killings of four vulnerable Indigenous women, one of whom—Buffalo Woman—remained unidentified at the time of the trial. The six-week judge alone case involved pre-trial applications challenging the Crown’s refusal to consent to a re-election from judge and jury to judge alone trial, significant media attention, and ultimately, an NCR (Not Criminally Responsible) defence.
The trial judgment itself is a lengthy one. It included a recognition of the broader social context within which the trial unfolded and an acknowledgment of the ways in which the case became emblematic of the tragedies underlying the reality of missing and murdered Indigenous women and girls in Canada. Despite this important but incendiary context, this trial required that I be particularly vigilant to the court’s institutional responsibilities to the accused. As always, the case required the care and rigour associated with an impartial and dispassionate application of the law to the facts as I found them.
Given that it was a judge alone trial, the case provided an opportunity for the court to make purposeful choices to allow Indigenous ceremony and symbols into the courtroom. In this way, however modestly, the trial provided the court an avenue for legitimating and restoring some community confidence in the justice system and trust in its process.
Almost a year after sentencing, Buffalo Woman was identified through DNA evidence. I agreed to hold a special sitting to receive victim and community impact statements of the now identified victim. Mindful of both the legal parameters and institutional duties presented by this situation, I determined that such a process would provide an opportunity to acknowledge the dignity of the victim and what was lost with her murder. It was a process which I determined to be both appropriate and necessary in the exceptional circumstances of the case.
Synopsis 4:
R. v. K.G.K., 2017 MBQB 96
This judgment decided a unique motion alleging unreasonable delay. The delay was caused by the judge who presided at trial and who took nine months following the completion of the evidence to render his verdict. The question was whether, when assessing judicial delay in decision-making in the context of an alleged breach of an accused's Charter right to be tried within a reasonable time, such judicial delay should be assessed by including it in the "presumptive ceiling" set out in the framework of the Supreme Court of Canada judgment of R. v. Jordan. That novel question was rendered more complicated by the fact that it involved a tension that arises from a consideration of two colliding constitutional principles. That collision or tension, as between the constitutional principle of judicial independence and the constitutional right to trial in a reasonable time, cannot be resolved by a simple reference to a presumptive ceiling which would implicitly result in one right or principle trumping the other. Instead, my analysis was required to do what must be done any time constitutional rights or principles collide: the rights and principles in question must be balanced and reconciled in the context in which they arise. I concluded that the judicial delay was not to be treated under the framework for s. 11(b) set out in the new legal test in Jordan. In other words, judicial deliberation time was to be excluded from the presumptive ceiling analysis. This conclusion, in part, follows from the "judicially independent" status of judges and the fact that they are required to carry out their duties and responsibilities in possession of a great deal of discretion. This discretion extended beyond independent decision making and included a judge's capacity to prioritize his or her workload. I concluded that while judicial delay in decision making will potentially give rise to ethical issues (potentially dealt with in a different forum), only in exceptional cases (where it is "shocking, inordinate and unconscionable") will it be violative of an accused's constitutional right to be tried within a reasonable time. This judgment was affirmed by both the Manitoba Court of Appeal and the Supreme Court of Canada (see R. v. K.G.K., 2017 MBQB 96, aff'g 2019 MBCA 9, aff'g 2020 SCC 7).
Synopsis 5:
R. v. Rémillard (2005), 199 Man. R. (2d) 6 (Prov. Ct.)
This judgment was written in French, although I am providing the English version of the judgment.
This judgment was written when I was sitting as a Manitoba Provincial Court judge. Although the facts are somewhat banal (arising as they do from traffic offence notices), they led to an analysis and remedy of some significance.
The case required me to consider the scope of The City of Winnipeg's legal obligation when providing supposedly bilingual documents to residents of a designated area. In this case, portions of the offence notices in question were listed only in English. The accused persons contested the validity of the notices of infraction pursuant to Part 9 of The City of Winnipeg Charter, particularly s. 456(1) concerning the provision of municipal services in both languages of the Riel district. The accused argued that the large part of the notice of infraction was only in English, such that English took precedence over French, contrary to the requirements of the regulations of The City of Winnipeg which mandated equal treatment of those languages.
In addition to an examination of the applicable statutory framework, my analysis required me to utilize the principles of interpretation as set out in R. v. Beaulac, [1999] 1 S.C.R. 768. Those interpretative principles are deemed to be primordial whether the language rights in question are "constitutional" or "ordinary". I relied upon Beaulac in respect of the proposition that language rights must, in all cases, be interpreted purposefully, in a manner consistent with the preservation and development of official language communities in Canada. I determined that the objectives of the relevant legislation as described in the preamble attempted to normalize the use of French in the provision of the municipal service in designated areas and make French services as accessible (and of comparable quality) as those offered in English. I concluded that the failure to have fully bilingual notices made the quality of the service provided neither comparable nor equally accessible. The decision was affirmed in the Court of Appeal.
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:
(1) The Crisis in Child Protection - Unacceptable delays in final resolutions in respect of child protection matters in Manitoba had become the norm. This already harsh fact need be seen through the prism of the accompanying reality that 89% of the children who had been taken and kept in provincial care were from Indigenous communities. Put starkly, the impact of the identified delay was disproportionate on Indigenous children and families. Given the applicable jurisprudence and the disproportionate impact that I just mentioned, I found there was both a constitutional imperative, as well as a moral imperative, to implement reforms that would address this worsening human and social tragedy. Accordingly, the court, under my leadership and initiative, proposed a new model which ensured it would prioritize child protection in the Family Division court calendar so that decisions involving children in care would be made without delay. The model is currently overseen by a committee of inspired expert judges. The model was arrived at after consultations and discussions amongst the judiciary, the Bar, representatives of The Law Society, the CFS system and Legal Aid. The new model generally and the model's intake component launched in 2017, resulted in immediate improvements to the adjudication times for children under apprehension. The model has effectively eliminated the delays that had been experienced in obtaining trial dates and it has also ensured compliance with governing legislation which requires the court to vigilantly play its role in ensuring the speedy adjudication of issues related to the protection of children. The model has resulted in the following: we now have less than 12 child protection trials per year province-wide; parents and agencies are meeting sooner in the process and are having more detailed and informed discussions about case planning before the case proceeds to litigation; more short-term orders are being sought as a tool to assist parents in obtaining addictions treatment, counselling and housing and this, in turn has resulted in the parties working together much sooner to discuss family unification; trials are now being set only in those cases as a last resort, which has resulted in redirecting resources of the parents and the agency to the family rather than to litigation; there are as noted fewer trials being set.
The identified changes noted above required the judiciary, the legal profession and the CFS system to adjust their thinking and approaches in the spirit of realizing a culture shift. Not only were delays reduced dramatically, but child protection trials, when they now proceed, are more focussed and shorter in length. Most importantly, children are prioritized as the stakeholders have understood that the Court of King's Bench can no longer be the waiting room for child welfare and that requests for adjournments and delays in hearings will not easily be granted. The corresponding message is that cases cannot be delayed or obscured by agency program (or service) issues or by the parent's rehabilitation schedule.
It is gratifying to note that the transformative changes in our court's child protection model have been examined, adopted and/or customized by other provinces. For example, after its own independent study and in consultation with our court, the New Brunswick Court of King's Bench and the New Brunswick provincial government have endorsed and indeed legislated significant changes in their child protection regime based on the Manitoba model.
The child protection court reforms are not finished but rather are a work in progress. I continue to lead our court in discussions with agencies, First Nations and Métis organizations, and the child protection Bar regarding new processes and approaches under both provincial child and family services legislation, the new federal legislation (An Act respecting First Nations, Inuit and Métis children, youth and families) and other emerging Indigenous child welfare laws.
(2) The Judicial response to the COVID-19 pandemic and the needed ongoing provision of judicial services - Like courts everywhere, the Manitoba Court of King's Bench was faced with an unprecedented challenge in the form of the COVID-19 pandemic. Achieving the critical balance between maintaining access to the courts and protecting public health and safety was difficult but necessary. The pandemic highlighted the fundamental role played by the judiciary as a foundational institution in a constitutional democracy, in safeguarding the rule of law even and especially in times of crisis. Responding to this challenge engaged the court, and particularly the chiefs, in matters ranging from the most practical (e.g. regular meetings with the Chief Public Medical Officer, choreographing the physical layout of courtrooms, installation of plexiglass, demarcating physical spacing requirements, the expanded use of technology and virtual hearings) to the most foundational (protecting the open courts principle, ensuring access to justice, avoiding delay). Happily, the systemic initiatives and access to justice Court reforms implemented by the Court of King's Bench prior to the pandemic (e.g. changes to the courts Case Flow Scheduling Models in criminal, civil, family and child protection proceedings) largely enabled the court to emerge from the worst of this period with no backlogs and minimal delays.
(3) The Court of King's Bench Response to R. v. Jordan, 2016 SCC 27 - The transformative judgment in Jordan signalled in the clearest of ways that the culture of complacency surrounding delay in criminal matters could not continue. In sending that message, the Supreme Court in Jordan set out a new and demanding framework for determining violative delay. Canadian courts everywhere have been required to respond to Jordan not only to avoid the violative delay that might result in judicial stays of proceedings in serious criminal cases, but as important, to ensure that public confidence in the justice system is not further tarnished by ongoing delays which are unacceptable in and of themselves. In Manitoba, such delays have an added moral implication insofar as much of that delay has a disproportionate impact upon our First Nations citizens who, for complicated socio-economic reasons, are less able to obtain judicial interim release. In other words, those accused persons experience this delay while in custody.
The Manitoba Court of King's Bench response to the crisis and culture of delay in criminal matters (identified in R. v. Jordan) was to build upon already existing initiatives put in place to address this issue of delay. The focus of these initiatives has been to improve the scheduling and management of criminal proceedings by expediting the criminal trial process from the date of committal to the conclusion of sentencing. As reflected in the court's practice directive of October 20, 2016, the court mandates the scheduling of a first pre-trial conference within 45 days from the date that an accused is committed to stand trial, it requires the setting of a trial date at the first pre-trial conference, and also, it mandates the regular scheduling of pre-trial applications and voir dires in the days immediately preceding the trial proper and not during a separate earlier set of dates. The setting of a sentencing hearing occurs at the time a conviction is entered. The large majority of trials are now scheduled by the court to take place within 10 months of the first pre-trial conference for in-custody accused and within 12 months of the first pre-trial conference for out-of-custody accused, thereby easily meeting the 30-month time imperative and "presumptive ceiling" stipulated in Jordan. Concurrently with these practice initiatives, the court also undertook a leadership role in working with appropriate government representatives and Crown and defence counsel to further expedite the timing of criminal proceedings. This included suggestions by the chiefs of the Court of Appeal, the Court of King's Bench and the Provincial Court to replace the preliminary inquiry with an out-of-court discovery process. These suggestions were later included as a recommendation in the June 2017 final report of the Canadian Senate's Standing Committee on Legal and Constitutional Affairs. The court also worked with senior officials of the Crown's office to encourage the employment of best practices, such as flexibility in the assignment of Crown counsel so as to permit the scheduling of pretrial hearings and trials on the first available dates and to encourage timely broad Crown disclosure. The court also worked with defence counsel to ensure best practices, such as encouraging earlier attention to resolution. Reliance was placed on the new Criminal Proceedings Rules enacted October 1, 2016, in order to increase the rigour brought to the assessment and adjudication of pre-trial issues.
In addition to the above improvements, now more than ever, technology is being deployed to improve the speed with which access to justice is facilitated, including in rural and northern communities.
(4) The Manitoba Judiciary's response to the closure of the St. Boniface Court in 2014 - This closure had the potential to directly and negatively affect the always fragile matter of access to justice in French. It was also yet one more reminder of the need for the judiciary to remain vigilantly engaged as it relates to constitutional linguistic rights. In 2014, I, along with the two other chiefs, was advised that the St. Boniface Judicial Centre in Winnipeg would be closed. That closure raised unique constitutional concerns with respect to access to justice because that courthouse had traditionally represented specific and important access to French language court services for the greater Winnipeg area. As the Supreme Court of Canada made clear in Re Manitoba Language Rights, [1985] 1 S.C.R. 721 at paras. 45 and 47, the judiciary is the institution charged with the duty to protect the substantive rights entrenched by s. 23 of The Manitoba Act, 1870, rights which ensure equal access to the law in either the French or English language. As a result of the closure, the chiefs acted with due dispatch and issued a press release to strongly remind the government of its constitutional obligations and duties. Within days, temporary measures were put in place to minimize any interruption in services while a new St. Boniface location was arranged. Subsequently, when matters did not proceed as anticipated, I, along with the two other chiefs, published in 2016, a letter reminding the government of its responsibility. The St. Boniface court remains open and its improvement and continuation are anticipated in connection to my earlier mentioned work as chair of Groupe de travail chargé d'élaborer une proposition pour la reconfiguration des services et de l'espace physique au palais de justice de Saint Boniface.
(5) The Establishment of the Court of King's Bench's "Trust, Reconciliation and Access to Justice Committee" - In June 2017, I announced the establishment of the Trust, Reconciliation and Access to Justice Committee (TRAC) with a mandate to address the unique obligations, opportunities and challenges that surround the Court of King's Bench's relationship with Indigenous peoples. The creation of TRAC constituted one of the first efforts by any court in Canada (at any level) to directly address the TRC's Calls to Action.
Four reference points provided a starting framework for TRAC's work. Briefly, these involved:
- Building trust and understanding on a "Nation to Nation" basis with Indigenous communities through outreach and engagement;
- Enhancing judicial awareness of challenges and opportunities connected to reconciliation;
- Identifying specific initiatives aimed at producing real and meaningful change; and
- Normalizing the court's attentiveness and vigilance to the unique access to justice issues faced by Indigenous Manitobans.
With these in mind, the court began taking meaningful steps to foster judicial and institutional reconciliation. This included significant work on the adoption of the active offer of the sacred eagle feather as a form of oath in Manitoba courts, an Indigenous-led reconciliation initiative that has now become a normalized part of our everyday routine provision of judicial services. It has also involved an ongoing commitment to judicial education on Indigenous legal traditions and processes, and to ensuring that Indigenous voices and teachings are incorporated into all of the court's education sessions. This commitment to education is resulting in a subtle culture change on the court - an exceptional example of which sees one of our judges currently learning Cree. Engagement with Indigenous communities and groups throughout the province has been—and will continue to be—a critical pathway to enhancing the court's access to justice efforts and its broader participation in the long-term project of judicial reconciliation.
While the committee took these important steps in the period that followed its establishment, much of its work—and particularly its outreach efforts—were paused during the uncertainty of the pandemic.
Following the end of the pandemic three years ago, and in an effort to revitalize TRAC and the court's reconciliation engagement with new ideas and fresh perspectives, five distinguished Indigenous community members (First Nation and Red River Métis) were invited to participate directly as ongoing members of TRAC. Now in TRAC's eighth year, the TRAC's community members active involvement has been normalized as the committee continues to chart (with appropriate humility) new ways of building the Court's institutional relationship with Indigenous Manitobans.
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:
Sauvé v. Canada (Chief Electoral Officer), 2002 SCC 68, [2002] 3 S.C.R. 519 - By the time this was heard in the Supreme Court, I had become a judge of the Manitoba Provincial Court. Although I was not involved directly in the hearing, the Supreme Court factum was inspired and shaped by the arguments put forth at trial and the factum for the Federal Court of Appeal which I had prepared. The Supreme Court struck down the legislation.
I appeared and argued in the Supreme Court in Sauvé in April 1997 on the question relating to the stay of the trial judge's order before a 5-member panel of the Court. The Supreme Court dismissed the Crown application for leave to stay the judgment pending appeal.
List all Supreme Court of Canada leave applications in which you participated as counsel and their outcome (include any pending cases):
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):
(1) R. v. Grant, 2015 SCC 9, [2015] 1 S.C.R. 475 - This appeal arose from a first-degree murder trial. The judgment of the Supreme Court dismissed the Crown appeal on the question of unknown third-party suspect evidence and the matter was remitted for a new trial. Notwithstanding the recanting of foundational evidence by the relevant witness, the Court believed the evidence of a third-party suspect ought to have been admitted. The Court disagreed with my initial determination on a voir dire at trial and also disagreed with the test formulated and applied by the Manitoba Court of Appeal. This case effectively created a new test for determining the admissibility of unknown third-party suspects.
(2) R. v. Kociuk, 2012 SCC 15 - This was an accused's appeal as of right following from his conviction by a jury for first-degree murder. The conviction was upheld in the Manitoba Court of Appeal. The appeal was summarily dismissed by the Supreme Court following the oral hearing.
(3) R. v. K.G.K., 2017 MBQB 96 - As I earlier noted in the synopsis provided for this judgment, this case involved a unique motion alleging unreasonable delay caused by the judge who presided at the trial. That trial judge took nine months following the completion of the evidence to render a judgment. Following the Manitoba Court of Appeal's affirmation of my judgment and a full hearing in the Supreme Court of Canada, the Court upheld my first instance determination.
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):
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?
In identifying my most significant contribution to the law and the pursuit of justice in Canada, I focus below on my broader leadership role as chief justice of a superior court. I do so in no way intending to minimize my jurisprudential contributions as a still regularly sitting judge. However, given the limits of space, I illustrate that contribution and its potential scope by setting out two of my distinct areas of activity or initiative as chief justice that have had or will have a potentially long-term and positive impact on not only the administration of justice, but also, the public's understanding and perception of it. The two areas can be summarized as: (1) impactful systemic and court reform; and (2) institutional outreach.
IMPACTFUL SYSTEMIC AND COURT REFORM ENHANCING ACCESS TO JUSTICE - As with every province and territory in Canada, we in Manitoba have addressed and will continue to purposefully address issues of access to justice. These issues may involve challenges of efficiency, but so too do they involve issues of representativeness, inclusion and institutional trust. As a chief justice, I have tried to remain mindful of both of these dimensions when addressing the challenges and opportunities associated with access to justice. As it relates to efficiency, during my tenure as chief justice, access to justice issues have required us to successfully reform and offer a better judicial service in every diverse area of the court's broad jurisdiction (i.e. proceedings in criminal, civil, child protection and family law). That better judicial service needed to be and now is less complex, less expensive and more prompt. I have already mentioned in this application the court's systemic reforms in response to Manitoba's crisis in child protection and the crisis and culture of delay in criminal proceedings. The reforms respecting those two crises were animated by constitutional and moral imperatives involving not only the legal consequence of violative delay, but also, the disproportionate impact that this delay had on Indigenous citizens of Manitoba. Not previously mentioned in this application is our court's equally significant and unprecedented access to justice reforms in the area of family law. Those reforms targeted the costly (emotionally and financially) and adversarial reality of needlessly protracted legal proceedings suffered by those experiencing family breakdown. With the collaboration of my colleagues, I led the development of the Family Division Case Flow Scheduling Model, which began on February 1, 2019. That Model represents a foundational change in the court's approach to family disputes.
Since the inception of the FD Model, court statistics reveal that 70 percent of family cases are resolved, either completely or substantially, at an initial triage conference. Of the cases that proceed to the first case conference, the majority of them also resolve on a final basis. In a court that scheduled almost 300 family trials annually, with a third of those proceeding, we are now seeing only 20 to 24 trials proceed each year. The financial and psychological savings to families of early and lasting judicially assisted resolution is obvious.
Throughout my tenure as chief justice, in addition to the court's already explained role in pursuit of judicial reconciliation (TRAC), the King's Bench made considerable efforts to promote gender equality and a broader diversity of peoples in our justice system and in our courts. Under my leadership and that of the other Manitoba chiefs, we were amongst the first courts to formalize a gender inclusive pronoun policy for all court proceedings and practice.
INSTITUTIONAL OUTREACH - We are living in a new more complex legal era where the judiciary plays an increasingly important but sometimes misunderstood public role. This occurs in the context of a social and political climate of increasing polarization, misinformation and disinformation, and where there are additionally, increasing populations of seemingly disenfranchised, marginalized and vulnerable groups. As chief justice, I have tried in the name of institutional outreach to formalize a more predictable approach to ensuring that public information about our court, the judiciary generally, judicial independence, the administration of justice and navigating our court system as a self-represented litigant is better disseminated to the public. Efforts have been made to enhance the role of judicial staff charged with court communications and media relations. I personally have tried to fulfill that ambassadorial part of the chief justice’s role by regularly making public appearances, conducting speeches and doing media interviews. To this end, I recently participated on a CBA panel exploring the important relationship—including the tensions and opportunities—between the judiciary and the media. While always balancing outreach with restraint, I believe I am perceived as a candid and constructive spokesperson for my court, its initiatives and the judiciary generally.
As already noted, my above emphasis on the chief justice’s role is not meant to suggest that I am not equally proud of other significant contributions I have made in the performance of other, more traditional aspects of the judicial role. Indeed, I wish to underscore that despite the additional administrative responsibilities that accrue to a chief justice, I continue to see myself as a sitting judge or a "sitting chief justice" who leads by example and who continues to regularly preside and adjudicate 60 to 70 percent of the time in both "ordinary" and more difficult "high profile" cases of every type. In so doing, I author many judgments each year. I am proud of the rigour of my many years of written jurisprudence generally and of certain judgments in particular in which my analysis on specific legal questions or issues has contributed to the growth or clarification of the law. The scope of my jurisprudence is as wide as the areas of law over which superior court justices preside. In addition to the diverse jurisprudence I have earlier noted, my cases have addressed such questions as: the constitutionality of the witness's oath and/or affirmation (R. v. Anderson, [2001] 7 W.W.R. 582 (Man. Prov. Ct.)); the constitutionality of the prohibition respecting the defence of duress in murder cases (R. v. Willis, 2015 MBQB 114); the application of the "burning bed" defence in the context of the self-defence provision (R. v. Hernando, 2009 MBQB 214); the honour of the Crown, duty to consult and the reciprocal duty to bring forward (Pimicikamak et al. v. Her Majesty the Queen in Right of Manitoba et al., 2016 MBQB 128); the limits and effects of "opinions for hire" in malpractice cases (Campbell et al. v. Jones et al., 2016 MBQB 10; Dmytriw et al. v. Odim et al., 2015 MBQB 24); and the fine line between judicial recusal and abdication (Kalo v. Manitoba (HRC), 2008 MBQB 92).
2. How has your experience provided you with insight into the variety and diversity of Canadians and their unique perspectives?
I grew up in a bicultural family in St. Boniface, Manitoba. On my father's side are deep Franco-Manitoban roots which go back more than 200 years. His ancestors include Marie Anne Gaboury, who was the first woman of European descent to travel to and settle in what is now western Canada. She also happened to be the maternal grandmother of Louis Riel. My mother was Polish. The experience of her parents was that of Saskatchewan homesteaders who were part of the European prairie settlement which helped shape the development and diversity of western Canada. This bicultural experience provided me not only a personal adaptiveness to differing perspectives and traditions, it also provided early exposure to the inspiring rewards and challenges that accompany the promotion and protection of a minority official language and a simultaneous celebration of ethnic and cultural difference.
I am married to a Franco-Manitoban, whose own deep ties and engagement to the community extend to having taught for many years in Manitoba's French school division—la Division scolaire franco-manitobaine (DSFM). Our daughters both attended primary school in that division. Given that the language of our home is principally French, my specific mention of the DSFM and my family's connection in that regard is not random. In the context of Manitoba's linguistic minority milieu — where the promotion and preservation of French language and culture is a critical, existential reference point and where the history of French language education has been controversial and uncertain — the creation of the DSFM in 1994 following the successful invocation of s. 23 of the Canadian Charter of Rights and Freedoms was a defining development of long-term significance for la francophonie manitobaine.
My attendance at St. Paul's Jesuit High School permitted me to experience a student body that was made up a wide variety of religious, ethnic, cultural, linguistic and socio-economic backgrounds emanating from all across Winnipeg's notoriously deep mosaic. While emphasizing intellectual rigour, along with their characteristic concern for social justice, the Jesuits placed an equal emphasis on an openmindedness, a broad tolerance and an uncompromising curiosity. That emphasis on an open-minded inclusiveness encouraged the understanding of the unique and diverse perspectives that flow from human, religious and national differences.
In addition to the almost three years I have spent in Europe where I have developed an even clearer view of, and appreciation for, Canada's capacity to promote and accommodate diversity and difference, I have also had the privilege of having studied, travelled and worked in both eastern and western Canada in each of Canada's official languages. The friendships formed and contacts made from my sojourns permitted me to better appreciate not only the physical, geographical and socio-economic differences that exist in this vast and beautiful country, but also the unique human perspectives that flow from the inherent advantages and challenges of life in each region or province.
In 28 years as a judge, I have continued to encounter evidence of the variety of advantages and challenges associated with the Canadian experience. Despite examples of situations worth celebrating, there appeared before me, the histories and stories of individuals which too often reflected the plight of traditionally disadvantaged groups in Canadian society. In that regard, my experience as a judge in the Manitoba Provincial Court included frequent travel to a number of First Nation circuit locations (some of which were very remote and isolated) where I would have been the assigned judge for significant periods of time. That experience gave me a window into both the opportunities and challenges in connection with building the requisite trust and respect that will be foundational for the justice system's future contribution to the project of reconciliation. My experience also permitted me to see firsthand the potential benefits of collaborating with community Elders and others to find ways, where possible, to better incorporate Indigenous legal traditions and restorative justice solutions (sentencing circles and customized community diversion, etc.) into the administration of criminal justice.
Some of the specific focus of my formal academic study has also assisted to provide relevant insight. I completed my final year of law school at McGill University, where I purposely took and audited courses that enhanced my understanding of the Quebec civil law tradition and Canada's bijural nature. For my Master's degree and thesis, I engaged in specific research of Canada's unique political culture (in the era of the Charter), which has traditionally remained distinct from the attitudes, ideologies and perspectives of the United States. In that connection, I examined what has always been unique about Canada's idiosyncratic and tolerant ideological mix, made up as it is, of a distinct liberal strain (with a deep respect for freedom) which has been nonetheless informed by the noteworthy communitarian and social democratic influences of subsequent waves of European immigration. Finally, my studies at Oxford and elsewhere in the area of contemporary normative political philosophy exposed me to various intellectual frameworks and approaches of political theory and rights theory. Those theories address subjects like liberal neutrality and state perfectionism and they routinely grapple with questions that arise in modern pluralistic societies in connection to differing "conceptions of the good" and sometimes colliding incommensurable rights. These studies also enabled me to better appreciate how a genuine respect for the diversity of individual perspectives and life choices is dependent upon a deep understanding of concepts such as dignity, autonomy and equality. Needless to say, those are some of the foundational concepts or principles that underlie Canada's unique recognition of both individual and group rights.
As an amateur playwright who has had plays theatrically produced (and published) and who has served on related boards and arts councils, my experience and association with the arts community has given me a special reference point and insight into Canadian diversity and indeed, the diversity of the human condition more generally. From my experience, the arts and the arts community - with its creativity, variety and energy - have the capacity to bring people together by posing relevant, daring and nuanced questions which, in turn, can encourage civic dialogue, which itself has the potential to refine and crystallize the community's understanding of itself and its members. Although my work schedule in recent years has made playwriting difficult, I will note that my last staged play, "Les Lions et Leurs Ponts" (2005), explored themes surrounding the meaning of identity, community, inclusion and survival.
3. Describe the appropriate role of a judge in a constitutional democracy.
Properly defined, a constitutional democracy is a system of government based on popular sovereignty in which the power, structure and limits of government are set forth in a constitution. Determining or clarifying the nature and scope of state power, the governing structure and the limits of government, are usually -— in a constitutional democracy — the task of the judiciary.
It is a given that there is an obvious and identifiable adjudicative function associated with the judicial position in any system of government, including a constitutional democracy (an adjudicative function performed in a variety of areas of public and private law). But in order to perform those and other adjudicative and clarifying judicial tasks—whether in respect of important questions relating to the constitutional architecture, the distribution of powers, the interpretation, application and enforcement of fundamental rights and freedoms, criminal guilt or innocence, or the settling of disputes as between citizens—there need be in place what the former President of the Supreme Court of Israel Ahron Barak identified as the preconditions for the realization of the judicial role. Ensuring those preconditions is itself a direct and indirect part of the judicial role in a constitutional democracy.
Those preconditions include not just the nurturing and cultivating of a deep and foundational societal respect for the rule of law, but also the ensuring of a public confidence and legitimacy that come from the judiciary's existence as an independent institution whose judges need be seen as guarding the Constitution and deciding disputes in an impartial and objective manner. Given the foundational importance of those preconditions, the appropriate and indeed essential role of a judge in a constitutional democracy must be understood in a more broad and nuanced way. In this construct, the judicial role includes, amongst other things, not only the adjudications specifically characteristic of a constitutional democracy, but as well, the judiciary's ongoing vigilant engagement in promoting and preserving the preconditions required for the realization of the judicial role.
Put simply, in addition to performing its multifaceted adjudicative function in a manner protective of the rule of law and fundamental rights and freedoms, the judicial role also involves other important dimensions which act to affirm judicial independence and impartiality. Accordingly, the provision by the judiciary of public information and education about the judiciary itself, the administration of justice, and substantive legal principles is an essential and foundational part of the judicial function as delivered both through court judgments and through institutional outreach. Needless to say, fostering public confidence also requires that a consistent level of judicious conduct — both in and out of court underpins all judicial activity.
Once the preconditions are realized, that judicial role can, in turn, be properly understood (in terms of its scope, responsibilities and limits) in connection to not just the definition of a constitutional democracy, but also, its nature as constituted by two foundational components: the constitutional and the democratic. The constitutional component provides the foundational basis for exploring how political authority is defined, limited and distributed by law. The democratic component is usually understood in connection to the concept of a "representative" democracy which contemplates a means by which an electorate can hold its elected representatives accountable for their exercise of power and authority. For the purpose of discussing the judicial role, the democratic component cannot be divorced from the constitutional component in that many of the relevant questions defining the character of a representative democracy are answered in or based on constitutional instruments or conventions: How is political authority held and exercised? How is political authority retained? Has the exercise of political authority exceeded permissible limits in relation to either jurisdiction or the fundamental individual or group rights accorded to the citizens of a polity?
These questions, when in relation to a dispute or controversy, are appropriately answered by the judiciary. While the judiciary's authority for answering those questions is grounded in the Constitution, the answers, however foundational, will nonetheless be informed by a judicial sensibility to the coexistence of the constitutional and democratic components. These answers will be informed by a judicial recognition that there is such a thing as a political sphere, a sphere where, at first blush, policy and legislation possess the sort of legitimacy associated with representative government and a so-called collective will. That said, such a so-called collective will is, by definition, rooted in a form of majoritarianism which cannot be determinative of constitutionality or questions respecting compliance with the rule of law, nor can it trump the judiciary's role in protecting and promoting fundamental rights and freedoms. As Chief Justice McLachlin stated in a September 1, 2003 article: "The parliamentary system of government is not simple majoritarianism. To be sure, the ultimate guarantors of legitimacy are free elections and the power of the people to change governments. But this power is grounded in the law, the law of the constitution. It is this that confers legitimacy on the state's exercise of its power."
While judges recognize that elected officials in a constitutional democracy have the institutional authority to make policy and indeed, discuss, interpret, promote and protect fundamental freedoms, there can be no abdication respecting the judiciary's own role, which can and must function in a balanced, co-existing way with the legislative branch. In that regard, in that same earlier identified article, Chief Justice McLachlin summarized the balance in the institutional roles in the following way: “Judges have an important role to play in maintaining Canadian parliamentary democracy. Parliament and the provincial legislatures remain the dominant players in shaping our society and responding to its needs in a creative and proactive role. But judges, when called upon, stand ready to answer the difficult questions on the constitutional limits of the exercise of power and the multiple accommodations so essential to the continued stability of our country. If judges are to discharge this role, they must not become politicians, nor can they be made politically accountable. The continued good governance of Canada demands no less."
Two decades later, Chief Justice McLachlin's words still resonate and continue to reflect and inform my understanding of a complex but indispensable judicial role in Canada's constitutional democracy.
4. Who is the audience for Supreme Court of Canada decisions?
The metaphorical "audience" for a Supreme Court of Canada decision is made up of members now greater in number and diversity than ever before. This reality flows inevitably from what is now the potentially broad societal influence and impact of each decision. This fact brings with it a resulting and not surprisingly heightened interest amongst engaged readers, both nationally and internationally.
It can perhaps be said that Supreme Court of Canada decisions have always been the object of interest in that they represent an authoritative (if not always definitive) pronouncement by the highest court of the country about questions which are often definitionally questions of "public importance". That said, there is no denying that the breadth of the "audience" has widened commensurately with what is now the Supreme Court's increased institutional importance and role in the Canadian polity. It is a role which involves the Court addressing highly contentious and sometimes insoluble questions of a political, social and moral nature.
It remains true that, to some extent, the intensity of the interest and scope of the audience will depend upon the area of law and specific nature of a case. Clearly, in very specific areas of private law, for example, or in particular criminal appeals taken as of right, there may be potentially less interest beyond that of the obviously engaged parties. Nonetheless, and on the whole, today's Supreme Court of Canada decisions receive greater scrutiny than ever before.
I set out below in no order of importance, the list of some of those individuals, groups or categories of groups who can reasonably be characterized as being part of that larger and more diverse audience for Supreme Court of Canada judgments. In each instance, I briefly summarize the nature of the interest and engagement of each group.
- PARTIES AND COUNSEL INVOLVED IN THE CASE: They have lived with the legal issues and factual (evidentiary) foundation for many years and seek from the decision, notwithstanding what will also be the Court's determination of the issue or issues of public importance, a responsive conclusion to the dispute underlying the appeal.
- THE BROADER PUBLIC AND SELF-REPRESENTED LITIGANTS: A now more engaged general public and the increasing reality of self-represented litigants requires the SCC in the name of access to justice to ensure that the Court's rigorous analysis in any given case remains accessible to the broader public and self-represented litigants.
- THE BROADER PROFESSIONAL AUDIENCE/THE LEGAL PROFESSION: This group will necessarily be made up as well, of an even more specific subset of legal specialist practitioners who, in the area in question, await eagerly decisions and corresponding reasons that provide authoritative and clarifying guidance which enable them to advise their clients and evaluate the law in an informed way.
- THE ACADEMY: The legal academy has long provided important and cogent analyses which identify legal trends and also, normatively shape future scholarly and jurisprudential discussion. Now, since the Charter, political scientists are similarly reading Supreme Court of Canada decisions with a view to evaluating their significance for the Court as an institution itself, and with respect to the Court's interaction and relationship with other Canadian institutions.
- GOVERNMENTS: At both the federal and provincial levels, governments scrutinize Supreme Court of Canada decisions, not only as parties, but with a view, in this era of the Charter, to better enable themselves to either anticipate or respond to the Court's direction respecting the interpretation and application of the Charter.
- FIRST NATIONS COMMUNITIES AND MINORITY LITIGANTS GENERALLY: It is important to acknowledge the special attentiveness (as audience members) of minority group members to Supreme Court of Canada decisions. Whether, for example, in relation to individual or group rights touching our Indigenous citizens, racialized citizens, the members of the 2SLGBTQI+ community or our Francophone and Anglophone linguistic minorities, Supreme Court decisions will continue to be one of the noteworthy conduits through which fundamental rights and freedoms will be enforced, clarified and developed.
- LAW ENFORCEMENT AGENCIES: In an era where security issues remain important and where modern technology has the potential to affect directly and indirectly fundamental freedoms, law enforcement agencies and those from whom they take advice look to Supreme Court of Canada decisions to set and clarify the parameters for acceptable law enforcement procedure and conduct.
- ADMINISTRATIVE TRIBUNALS: They look to Supreme Court of Canada decisions to provide clarifying direction with respect to their jurisdiction and their manner and process of decision making.
- THE MEDIA: A more and more sophisticated media is covering legal matters, especially Supreme Court of Canada decisions, recognizing the Court's role under the Charter to potentially shape the direction of public policy.
I will conclude by saying that despite the incredibly varied and complex subject matters on which the Supreme Court must write, when one examines the nature and diversity of its audience, it is easy to understand why it has become increasingly important that Supreme Court of Canada judgments present with all the qualities associated with ideal judicial communication: readability, accessibility, cogency, clarity and concision. Given the reach of the Canadian Charter of Rights and Freedoms and what will be the continuing growth and development of the law, there will be an ongoing responsibility for the Court to ensure that it addresses its multiple audiences with analyses which decide difficult questions of public importance, with guiding reasons rooted in predictable first principles and identifiable legal doctrine.
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?
This question confronts the vexing and at first blush, disturbing proposition that in certain but thankfully limited circumstances, it is possible and even necessary that the law will be properly interpreted and applied by judges of our apex court, and yet, justice, broadly defined, may not be readily perceived by a party enveloped in the particular dispute, circumstances and facts of a given Supreme Court of Canada appeal. This occasional and seemingly unsatisfying perception can be appropriately mitigated with a more full understanding of the role of a Supreme Court justice.
A number of years ago, former Chief Justice Bora Laskin identified the Supreme Court of Canada as a "supervisory tribunal" rather than an "appellate tribunal". He was underscoring the Court's essential role which is indeed to clarify, guide and authoritatively pronounce upon the law and issues which warrant comment. It has now become a commonplace to acknowledge that the Supreme Court of Canada is not a court of error correction. Amongst other things, this means, by definition, that apart from appeals as of right, there will be cases where, because of the rigours of the Supreme Court leave process, some errors committed in the lower courts will not get to the Supreme Court or, alternatively, will not be a central focus on any eventual appeal that may be heard. In other words, even in some cases where leave to appeal has been granted, a party or parties (perhaps even a "winning" party) may not believe or perceive the ultimate disposition or result to be consistent with the "equities". Yet, even when that may occur, it is still possible and not incongruous to assert that the participating Supreme Court justices have properly and judiciously performed their role. How is that so? Can it be said then that in some cases, the Supreme Court justices have, in performing their role properly, nonetheless not dispelled every appearance of injustice? When true, what in their role permits them to mitigate this perspective?
In answering these questions I will make two points, both in relation to the role of the Supreme Court. The first is in respect of the test for leave to appeal and how that, in part, defines or confirms the role of the Court. The second is in respect of the provision of reasons.
In understanding the test for leave, one can better understand not only part of the role of a Supreme Court justice, but also, how and why a case might have attracted the attention of the Court and how that might inevitably narrow the focus of the appeal and limit subsequent redress of what, for a particular aggrieved party, may be a specific and identifiable example of injustice on the narrow facts underlying the appeal.
The test for leave to appeal to the Supreme Court of Canada is an inquiry into whether the Court is of the opinion that the question involved in the proposed appeal is "... by reason of its public importance or the importance of any issue of mixed law and fact involved in that question, one that ought to be decided by the Supreme Court of Canada." Although factored into that test are considerations of ripeness and conflicting provincial appellate authorities, the Supreme Court test for leave implicitly reminds us that the fact that a lower court of appeal may have reached the wrong result on the specific facts of the case is not, by itself, sufficient reason to grant leave. It should be clear then that in respect of those cases which do present a question of public importance, the nature of such a question will often be such that the Supreme Court's focus will be broader than the result apparently displeasing one party or another.
In those cases where questions might arise about whether justice has been clearly or fully realized, perhaps because of the limitations attached to the Court's role or power, perhaps because of what question of public importance was examined, or perhaps because of the limits of the law as it currently exists, the Supreme Court, like all other courts, as part of its role, has an obligation to provide reasons that explain. Such reasons can explain the demarcated scope of the Court's power, both as defined by statute and in relation to the legislative branch. These reasons can also communicate and thereby mitigate through explanation and education, any sense of injustice based upon a misconception of the role of the Supreme Court and the perhaps unrealistic expectations as to its power. In that context, it is sometimes necessary to explain that more specific redress may require legislative change.
Needless to say, "justice" is about more than what may sometimes be sterile "questions" of public importance. Whether a court's role is supervisory or appellate, justice is the foundational objective of any court and it is best realized when the individual or human element of a case has been taken into account. Indeed, in the end, it may be said that in most cases in the Supreme Court of Canada, after having authoritatively set out a confirmed or changed general statement of the relevant law and then having applied it to specific facts of a case, a just result will and can be expected to follow. Still, in some other cases, it may nonetheless be the reality that an onlooker will sometimes be forced to grapple with the following counter-intuitive proposition: the Supreme Court properly acted as the guardian of law notwithstanding that on the particular facts of a given case, an injustice for a particular party has not been redressed, fully or otherwise. When that does occur, as it may, reasons that explain and educate beyond the discussion of the question of public importance will go a long way to not only fulfilling, but also to clarifying and legitimating the Supreme Court's supervisory role.
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Table of Contents
- Supreme Court of Canada Appointment Process - 2026
- The Independent Advisory Board for Supreme Court of Canada Judicial Appointments
- The Honourable Glenn D. Joyal's questionnaire
- Members of the Advisory Board
- Terms of Reference of the Advisory Board
- Qualifications and Assessment Criteria
- How to Apply and Instructions
- Frequently Asked Questions
- Contact Persons for Candidates
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