On the Nomination of Justice Martin to the Supreme Court

Advocates for the Rule of Law congratulates Justice Sheilah L. Martin of the Alberta Court of Appeal on her nomination to the Supreme Court of Canada. Justice Martin’s academic and professional credentials to serve on the Supreme Court — including being a law dean, law professor, commercial litigator, pro bono constitutional lawyer, and very active member of the profession generally — are beyond repute. Her experience on the Alberta Court of Queen’s Bench and Alberta Court of Appeal should also serve her well. While it is very unusual for both “western” judges on the Supreme Court to be from the same province (Justice Russell Brown is also from Alberta, having previously served on the same two courts before his elevation to the Supreme Court of Canada), Advocates for the Rule of Law sees no problem with this.

Justice Martin said many important things in her application, that we hope she will keep in mind as a judge on Canada’s highest court:

• “[S]ince we are a country governed by the rule of law, the law binds all and is supreme. Governments, as well as private actors are accountable under the law, which should be clear, stable and applied evenly. It falls to the judiciary to ensure that no one is above the law. The role of the judiciary includes fostering respect for the rule of law and increasing public confidence in the justice system.”
• “Just as the other branches of government must respect the judicial role, the judiciary must respect that state actors and other branches of governments have important roles to play in promoting and protecting the public interest.”

Some things in Justice Martin’s application or past do warrant caution. She expressed the view in her application that judges are “the trustees of the ‘living tree’ doctrine and have the obligation to ensure that rights develop along with changing social realities” while also praising the “dynamic interaction” between Parliament and the judiciary in the aftermath of the Charter. Advocates for the Rule of Law has indicated in the past why these views, when taken outside a very narrow context, can be problematic. Her past academic writings, as well as some legal arguments she advanced as a lawyer on behalf of LEAF, could also be interpreted as having insufficient respect for our common law traditions and the role of legislatures in our constitutional order.

Having said that, it is deeply wrong to attribute a lawyer’s client’s views to the lawyer. And academics and judges also have different roles in our legal system, as Justice Martin herself acknowledged in her application. We trust her experience on the judiciary will remind her of the important but constrained role for the judiciary in our constitutional order, and wish her nothing but the best.