NDP MP Yvon Godin sponsored a private member’s bill which would require all new SCC judges to be fluently bilingual.  [Adrian Wyld / The canadian Press] Click here to see full sized version.

Few lawyers would deny that only the best qualified jurists should be appointed to Canada’s top court — but what is best is partly in the eye of the beholder.

With three Supreme Court of Canada judges facing mandatory retirement over the next five years (2 from Quebec and 1 in Ontario) the government making the next appointments will have to decide what it wants, beyond impeccable legal credentials, good character and sound judgment.

There are already plenty of ideas on offer about what other characteristics and qualifications the next Supreme Court nominees should possess.

On Parliament Hill, for example, NDP, Liberal and Bloc Quebecois MPs have joined ranks to back a private member’s bill which would require all new Supreme Court appointees to be able to hear appeals in both official languages, without the assistance of interpreters.

The Conservative government opposes Bill C-232, but was unable to kill it at second reading debate last May, when the bill passed by a vote of 140 to 133.

If passed at third reading next month, Bill C-232 would rule out many otherwise well-qualified candidates for the high court, particularly for the upcoming vacancy in Ontario, and future openings in the West (for example, Stephen Harper’s first appointee after he became prime minister, Justice Marshall Rothstein of Manitoba, was not bilingual).

Bill C-232’s sponsor, New Brunswick NDP MP Yvon Godin, argues that all Canadians are entitled to have the nuances of their arguments in both official languages fully understood by all the members of the top court.

He says he has no sympathy for eminent jurists who could find their Supreme Court aspirations dashed by his bill.

“That’s not what should be the test,” the former miner and union official told The Lawyers Weekly. “At the lower level nationally, the Federal Court, they have to be bilingual, so why not the Supreme Court?”

Francophone Supreme Court judges from Quebec and New Brunswick have long been obliged, in practice, to be bilingual before they are deemed worthy of appointment by the government, Godin points out. Why should there be a lower standard for anglophone jurists, he asks.

He scoffs at the suggestion that qualified bilingual candidates are scarce in some regions. “We have 33 million people in our country and we cannot find nine judges who are bilingual—I think we are in trouble,” he says.

Gwendolyn Landolt, national vice-president of REAL Women, a pro-life, pro-family group, agrees it would be “helpful” for all Supreme Court judges to be bilingual. But she argues it is more important that the next Supreme Court appointees take a deferential approach to government in their judgments.

“What we have always asked for is it’s got to be based on merit, not gender,” explains Landolt. “You want people who have got experience, and are knowledgeable in the law, and who will be deferential to Parliament,…that should be key.”

By contrast, West Coast LEAF, a feminist legal group, would prefer a well qualified, but non-deferential, feminist jurist to replace at least one of the three male judges who must retire in the next five years.

Appointing a woman would make the Supreme Court the first top court in the common law world to have a majority (5-4) of women members. “A majority of women would be an incredible thing for the country and for what it says about what we value in our Canadian society,” says Alison Brewin, executive director of West Coast LEAF. She said the court has been overly deferential to governments in some of its recent judgments, and so would benefit from a new judge who takes a “strong approach” to enforcing equality and minority rights.

Once the next vacancy occurs, the Assembly of First Nations is expected to revive its campaign to get an aboriginal jurist well-versed in aboriginal law appointed to the Supreme Court. In sympathy with that goal, the Canadian Bar Association changed its official policy on judicial appointments in 2005 to require the 37,000-lawyer group to promote the appointment of qualified aboriginal jurists to appellate courts.

“The CBA will, at the very least, send a letter to the Minister of Justice informing him that this is the policy that the lawyers who are members have endorsed,” says Victoria lawyer Christopher Devlin, a former chair of the CBA’s national aboriginal law section.

Other lawyers would like the government to unofficially reserve a “barrister’s seat” on the Bench: a spot for at least one practising lawyer who joins the court without judicial apprenticeship, as did Justice Ian Binnie, and his predecessor John Sopinka.

“The government should reach outside the judiciary to refresh and renew the court’s thinking, at least in one or two of the next appointments to it, and by that I mean lawyers who are barristers, or senior corporate counsel, or perhaps even solicitors,” urges Henry Brown of Ottawa’s Gowling Lafleur Henderson LLP.

Brown argues Canada should eschew the European-style “closed shop” approach that only trained judges are qualified for the Bench. “It is inward-looking and leads to lack of fresh ideas and excessive homogeneity,” he argues. “The judiciary should be open to new approaches from outsiders.”

Jack Major of Calgary’s Bennett Jones LLP, a prominent barrister who retired from the Supreme Court in 2005 following a short stint at the Alberta Court of Appeal, says the court needs a mix of academics and practising lawyers, with and without judicial experience.

“There is a balance, but the balance should be in favour of practising lawyers with some knowledge of litigation,” he suggests. “If you get a competent lawyer, whether he or she has been a litigator, or a solid daily working lawyer, what you are looking for, by definition, is good judgment.”

However recruiting a prominent barrister straight from practice might not be as straightforward as it once was. When Justice Binnie was named to the court in 1998, the government announced his appointment as a fait accompli, without any advance publicity that might have scared clients away from his thriving Bay Street practice.

More recently Supreme Court candidates have faced months of publicity and uncertainty. If the process followed for Justice Rothstein in 2006 is reprised for the next vacancy, the Prime Minister will nominate his pick from a supposedly confidential short-list of candidates vetted and/or created by an advisory committee of MPs and others. That nomination will then be publicly “reviewed” in televised proceedings — if not formally voted on — by a larger ad hoc all-party committee of MPs.

In that context, an untimely leak of a candidate’s name could hurt a barrister’s practice, as Jonathan Sumption Q.C. learned last year when the media reported (accurate) rumours that the head of Britain’s largest chambers, by revenue , had applied, in confidence, for the 12th spot on the U.K.’s new Supreme Court. Unfortunately for Sumption, his candidacy encountered fierce opposition behind-the-scenes from some Court of Appeal judges who took offence that the lawyer described by The Times of London as having “a brain the size of a planet with fees to match” would leapfrog over experienced judges.

As the process and uncertainty dragged on for months, clients with high-stakes cases took their briefs elsewhere. Faced with possible great damage to Sumption’s million-pound-plus practice, his chambers announced last December: “In view of the press speculation about Jonathan Sumption Q.C.’s candidature for the current vacancy on the Supreme Court, he wishes to say that he was a candidate but has withdrawn his application. He will continue to practice at the Bar.”

That scenario would be unlikely to occur in Canada, says Peter Hogg of Toronto’s Blake Cassels & Graydon LLP. “After all it’s a considerable credential to have even been considered for the Supreme Court,” he notes. “People may not want the appointment for a variety of reasons, but I don’t think they would fear it because rumours of the appointment would drive away clients. I don’t think it’s going to have anything other than a very temporary effect on a person’s practice, and the long-term effect is probably going to be good.”

Hogg says the Bench, Bar and academe are all fertile recruiting grounds for the Supreme Court. “I think what you need is somebody who is a quick study, and willing to move from whatever was his or her past experience into the very different world of the court.”