Judicial Biography: Justice Sheilah Martin
Post 9/9 in TheCourt.ca’s Judicial Biography Series (Fall 2019)
Justice Sheilah Martin is the newest justice on the Supreme Court of Canada (“the Court”), appointed less than two years ago in December 2017. While sitting as a judge on the Courts of Appeal of Alberta, the Northwest Territories, and Nunavut, Justice Martin gained a professional reputation as a jurist focused on fairness, equity, and innovation. This post focuses on Her Honour’s contributions to Supreme Court jurisprudence, which are already extensive: Justice Martin has already adopted new methods of analyzing section 12 of the Charter, foregrounding contextuality in R v Boudreault (2018 SCC 58), and dealt progressively and candidly with race relations in R v Le (2019 SCC 34).
Justice Martin was born in 1956 and raised in Montreal. She earned a Bachelor of Civil Law and a Bachelor of Common Law (BCL) from McGill University in 1981 before moving to Alberta, where she went on to receive a Master of Laws (LLM) from the University of Alberta in 1983.
Justice Martin worked as a law professor and researcher at the University of Calgary from 1982 to 1986. During this time and onwards, she also taught in the common law and civil law exchange program organized by the federal Department of Justice and was a visiting professor at Osgoode Hall Law School.
Justice Martin was called to the Alberta Bar in 1989 before earning a Doctorate of Juridical Science (SJD) from the University of Toronto in 1991. When she was called to the bar, Justice Martin typed the word “person” over “man” in the professional oath, as reported in the Calgary Herald. She pursued her doctoral work under the supervision of Professor Bernard Dickens and now-Justice Katherine Swinton, culminating in a thesis entitled “Legal Controls on Human Reproductions in Canada: A History of Gender-Biased Laws and the Promise of the Charter.”
As an academic, Justice Martin focused primarily on equality rights and legal ethics. From 1991 to 1996, she was Acting Dean and then Dean of the University of Calgary’s Faculty of Law. At the law school, she taught courses ranging from commercial transactions to feminist legal theory to advanced constitutional law. She planned and participated in innumerable academic conferences, presenting on topics including legal ethics, legal roles and responsibilities regarding Indigenous residential school litigation, equality, violence in law, workplace diversity, and comparative constitutional rights. It was clear from the outset that Justice Martin’s scholarship drew heavily on her passions for education, women’s equality, and Indigenous rights. As an academic administrator, Justice Martin also worked hard to increase the number of underrepresented groups in law schools and the legal profession.
In 1996, Justice Martin left the academy and transitioned into life as a public law lawyer. From 1996 to 2005, Justice Martin practiced criminal and constitutional litigation in private practice in Calgary. She acted pro bono for the Women’s Legal Association and Action Fund (commonly known as LEAF) and the Alberta Association of Sexual Assault Centres in cases before the Supreme Court of Canada, including R v Shearing, 2002 SCC 58, R v Mills,  3 S.C.R 668, and Winnipeg Child and Family Services (Northwest Area) v D.F.G.,  3 S.C.R. 925. In 2000, she was an expert witness in the Thomas Sophonow Inquiry, called upon for her expertise in compensation for the wrongfully convicted. At the invitation of the National Chief of the Assembly of First Nations, Justice Martin joined the team tasked with finding a new approach to redress the harms caused by the forced attendance of Indigenous children at residential schools. Her work contributed to what later became the Indian Residential Schools Settlement Agreement.
Justice Martin was appointed to the Court of Queen’s Bench for Alberta in 2005. She was one of the first trial judges in the country to permit court journalists to use instant messaging in the courtroom during R v Paxton, 2012 ABQB 96, a complex case with 43 witnesses and extensive medical documentation. On this point, in her questionnaire for appointment to the Supreme Court, she wrote:
There was a great deal of public interest in this trial. The court was often full, the media attended daily, and I permitted real time reporting of what occurred in court. I granted a request from the accredited media to use instant messaging technology within the courtroom, rather than requiring them to leave court to file their stories. It seemed preferable to allow the light tapping associated with typing rather than the disruption of people coming and going.
In March 2016, Justice Martin issued the first judicial approval for a person requesting assisted death after the Supreme Court of Canada decision in Carter v Canada.
In 2016, after developing extensive experience working on legal issues that impact Indigenous communities, Justice Martin was appointed to the Courts of Appeal of Alberta, the Northwest Territories, and Nunavut. Justice Martin also served as a Deputy Judge for the Supreme Court of Yukon from 2009 until her appointment to the Supreme Court of Canada on December 18, 2017.
Overview of Leading Decisions
R v Boudreault
In her first written decision for the Court, R v Boudreault [Boudreault], Justice Martin and six other judges struck down the mandatory victim surcharge enacted by the former Conservative government in section 737 of the Criminal Code. A split 7-2 Court found that the mandatory victim surcharge inflicted cruel and unusual punishment on impecunious offenders in violation of section 12 of the Charter.
Justice Martin’s decision in Boudreault overturned a series of decisions of the Ontario and Quebec Courts of Appeal which upheld the mandatory surcharge’s constitutionality. The effect of the Supreme Court judgment was to eliminate the imposition of all mandatory victim surcharges going forward. However, the decision does not automatically grant a remedy to offenders whose surcharge sentences are still in the court system, nor to those whose appeal rights have expired. Justice Martin wrote that a variety of possible remedies exist for offenders who fall into these latter categories, including by recourse in the courts to section 24(1) of the Charter or via the government proceeding administratively:
“Many of the people involved in our criminal justice system are poor, live with addiction or other mental health issues, and are otherwise disadvantaged or marginalized,” Justice Martin wrote, calling the victim surcharge “an indeterminate sentence” for people who are unable to pay (Boudreault, para 3). Before Boudreault was released, offenders who could not pay the surcharge could be taken into police custody, imprisoned for default, prevented from seeking a pardon, or targeted by collection agencies. Justice Martin pointed out that not only are these offenders treated more harshly than those who can pay, but also that “their inability to pay this part of their debt to society may further contribute to their disadvantage and stigmatization.”
Justice Martin’s majority decision focused on the idea that sentencing is an individualized exercise, which is meant to take into account the circumstances of the offender as well as the nature of his or her crimes. Where offenders are unable to pay, requiring a surcharge to be imposed upon them would violate section 12 of the Charter.
Justice Martin’s first written decision for the Court has been widely praised as a step in the right direction for the Canadian criminal justice system. It also seems to have predicted changes in the political winds: Bill C-75, which received Royal Assent on June 21, 2019, re-enacted the victim surcharge regime but provided the courts with discretion to waive a victim surcharge if the offender could satisfy the court that the payment would cause the offender “undue hardship.” The Boudreault decision illuminates the multiple disadvantages faced by many offenders who are caught in the system, and it is reasonable to surmise that the a section 12 analysis ultimately influenced the direction of the legislation.
R v Le
Justice Martin has also had an impact on the shape of Charter section 9 jurisprudence. In a decision co-written with Justice Brown and delivered on behalf of a majority of the Court, Justice Martin held in R v Le that police carding in a private backyard constitutes arbitrary detention for the purposes of section 9 of the Charter.
According to Justices Martin and Brown, someone is detained when an ordinary person in the same situation would think that they were not free to leave and had to comply with police demands. Racialized persons, such as Mr. Le, who is Asian, often have more negative police contact than other people do, and a person frequently stopped by police would likely think that they had to comply with police demands (Le, paras 109-10). For this reason, the majority found that Mr. Le was detained the moment the officers entered his friend’s private backyard without warning and or any reasonable suspicion of a crime. This detention and the subsequent search for evidence constituted a breach of Mr. Le’s Charter rights, and the evidence was excluded pursuant to section 24(2).
The decision contains a significant amount of useful language to describe the unique relationship between the police and racialized communities. One example of this is contained in paragraph 81, which reads in part:
[T]he conclusion that there was no racial profiling addresses the police motivation and not the separate and specific question of the impact race may have had on the perception of the reasonable person in the shoes of the accused. While racial profiling looks inwards at what motivated the police interaction with a person, the racial context analysis relevant to the timing of the detention under s. 9 is not inward-looking, but rather focuses on the relational aspect between the police and racialized communities in order to discern what a reasonable person in the circumstances would perceive.
Justice Martin’s decision in Le was not only a strong analysis of the section 9 right in action; it was also ground-breaking in its lengthy, reasoned, and perceptive analysis of the race relations that inform so much of the Canadian criminal justice system. It will undoubtedly inform much of the Charter analysis in similar cases going forward.
Justice Martin is the most recent appointment to the Supreme Court of Canada, but Her Honour has already made a significant impact on the Court’s jurisprudence and reputation as an institution. In June of this year, Justice Martin was the keynote speaker at the Advocates’ Society End of Term Dinner, where she spoke to over 1400 lawyers about everything from the possibilities of technology to the importance of volunteering for things that make us uncomfortable; from access to justice to the importance of exercise. She inspired and made the crowd laugh at the same time.
In her judicial appointment questionnaire, Justice Martin wrote:
In Canada, there remains an ongoing dialogue between the public, its government and the courts. This synergy is dynamic, requires a conscious balancing of interests and responds to change. The goal is a good faith and intellectually rigorous engagement of all branches of government that produces laws which best serve the public, and in which they will have faith and confidence.
I certainly have confidence in a justice system where the judges at the top include Justice Martin.