Two years ago, in November of 2022, Ritu Khullar was appointed Chief Justice of the Alberta, Nunavut and Northwest Territories Courts of Appeal. Only a few years before that, in 2018, she was appointed a justice of Alberta’s Court of Appeal, having been appointed to the Court of Queen’s Bench (now King’s Bench) in 2017. A fast rise to a demanding job. Khullar is the first woman of South Asian descent to hold a position of provincial chief justice in Canada. Her predecessor, Catherine Fraser, was the first woman appointed as chief justice of a provincial court of appeal in Canada.
Khullar was born in 1964 in Fort Vermilion, a hamlet 660 km north of Edmonton. Her parents had immigrated to Canada from India and worked as teachers in a Mennonite colony in La Crête. When Khullar was in Grade 4, the family moved to Morinville. Khullar attended Old Scona Academic High School in Edmonton, then was an honour student at the University of Alberta and the University of Toronto. After law school, Khullar clerked at the Alberta Court of Queen’s Bench and at the Alberta Court of Appeal—a harbinger of her future justice roles.
In her remarks at her swearing in ceremony as the Chief Justice of the Nunavut Court of Appeal, held in Iqaluit, Khullar showed she’d done her homework by referring to the qulliq, an Inuit lamp that is usually tended by women and associated with their strength and warmth.
The Nunavut Court of Appeal meets three times a year in Iqaluit, while the Court of Appeal of NWT usually sits in Yellowknife. In Edmonton the Court of Appeal sits in the south tower of Sir Winston Churchill Square. In Calgary it sits in two locations, hearing criminal cases at the Calgary Courts Centre and the rest of the appeals—for now—in leased space in the TC Energy Tower. Long-time Calgarians might remember the brouhaha that ensued after asbestos and other contaminants were discovered in the old sandstone Court of Appeal building, empty since 2003. A decontaminated version of the heritage building will be incorporated into a new courthouse in Calgary at the same location. The project, announced by then-minister of justice Kaycee Madu in 2021, is still in the planning stage.
Chief justice Khullar does not sit on all the appeals of all the courts she oversees. But in 2023 she was one of the three NWT Court of Appeal justices who heard R. v. Avadluk, a case regarding an indeterminate sentence for a dangerous offender. Of the 101 Alberta Court of Appeal items posted in the first three months of 2024 on CanLII (the Canadian Legal Information Institute’s website), Khullar was on the court panel of at least 10, the range of which included: the province’s duty to negotiate (Métis Nation of Alberta Association v. Alberta), a murder conviction (R. v. Saddleback), suspended limitation periods during COVID-19 (StraightVac Services Ltd. v. Sunshine Oilsands Ltd.), a sentence imposed for child luring and making child pornography (R. v. Love), and a parenting order (Bitz v. Preuss).
One of Khullar’s tasks as chief justice is to implement the federal call for modernization of court operations, which includes allowing more people to appear in court remotely and greater use of technology in jury selection. Modernization will help her deal with another aspect of her job as well: the backlog of cases in the Alberta courts. The Advocates Society, in its 2023 call for action, found Canada-wide endemic delay in the delivery of civil and family justice. Its report states: “In Alberta it routinely takes more than nine months for an application longer than 20 minutes to be heard by a judge in Edmonton or Calgary; and two to three years for a trial longer than five days to be scheduled from the date the parties certify readiness.” In 2023 the chief justice of the Supreme Court of Canada, Richard Wagner, noted that Alberta had 22 criminal cases that had been delayed more than 30 months and were therefore at risk of being stayed (halted) under the unreasonable-delay limits set out in R. v. Jordan in 2016.
The current court backlog can’t be blamed solely on pandemic-related court closures, since the backlog existed before the closures. And while the pandemic exacerbated the problem, it also prompted small but ongoing improvements in efficiency, such as conducting more hearings virtually rather than in person.
One of the causes of delay is a perpetual shortage of judges. Chief justice Wagner, in his June 2023 update, chastised the Trudeau government for its slowness in filling judicial vacancies, while also acknowledging other factors such as a shortage in provincial funding and personnel. Justices of the superior courts in the province, i.e., the Court of Appeal and the Court of King’s Bench, are federal appointments. Recommendations for new justices to courts at this level come through provincial and territorial judicial advisory committees. Judges in the lower court in this province—formerly called the Provincial Court of Alberta but renamed in 2023 as the Alberta Court of Justice—are appointed by the provincial minister of justice.
Seven provinces have adopted unified family court systems which are a mix of superior and lower court jurisdictions, to create efficiencies and reduce delays, stress and costs in family matters. In 2018 the federal government offered Alberta enough funding to hire 17 judges for a unified family court, then withdrew that money—$50.2-million over five years—in Budget 2024. “Alberta has been allocated judicial seats which they have chosen not to create, resulting in 17 unused judicial seats intended for unified family courts,” the budget document reads. “By redistributing positions to courts in jurisdictions where they will be put to use, the federal government will ensure funding for Canada’s justice system does not go to waste, as some provinces have chosen to do.” Alberta justice minister Mickey Amery agrees that Alberta’s courts need more judges, but said the federal conditions for a unified family court “simply do not work here in Alberta.”
Another responsibility of the chief justice is to distribute the appeal work among the members of the court. The Alberta Court of Appeal can have up to 14 justices, plus the chief justice, plus supernumerary (retired, part-time) justices. Usually three justices sit at a time. Certain requests, such as permission for a third party to be a part of the proceedings—called leave to intervene—can be heard online by a single appeal judge. Rarely, for more complex legal issues or those of broader significance, five justices might be on the panel.
Efficiency and fairness, for the parties and the justices, are at stake in the distribution of work. Generally the public hears nothing about the process of choosing which justice will adjudicate which matter. The last publicized disruption in the appeal ranks occurred in 2017, when Catherine Fraser was the head of the court, and justice Ronald Berger (now retired) alleged in his “concluding observations” in R. v. Gashikanyi that some judges were chosen more often than others to sit on sentencing appeal panels, and that it followed that there was a lack of diversity of experience and opinions on the panels, which resulted in “a disproportionate opportunity afforded to certain judges to shape the jurisprudence of the Court.”
The other two justices on the Gashikanyi panel responded to Berger’s allegations by emphasizing the role of judicial integrity and impartiality, and by giving examples of situations where random assignment of justices on panels is not always practical, particularly when considering workloads and expertise.
Khullar’s expertise, as stated in her judicial application questionnaire, is in “constitutional law, human rights, labour, employment and other aspects of public law.” She articled at a large Edmonton firm, where she met and worked with Dale Gibson, a scholar and legal expert in many practice areas, including constitutional law and Aboriginal law. When Gibson left to start a boutique constitutional law firm, he asked Khullar to join him, and she accepted. In the preamble to a 2022 tribute she wrote for the Alberta Law Review, Khullar describes Gibson, who died in early 2022, as “my friend, mentor and former colleague.” In the article Khullar writes “the lessons I have learned from him inform my own understanding of what it means to be a principled advocate, lawyer and jurist.”
During her time in practice with Gibson, one of the files Khullar worked on was Vriend v. Alberta, a case that arose in the late 1990s when Delwin Vriend was fired from Edmonton’s King’s College (now The King’s University) for being gay. The case set a foundational precedent for 2SLGBTQIA+ rights, because the Supreme Court of Canada held that it is a breach of the Charter to discriminate on the basis of sexual orientation. The Vriend case is also known for the coming together of many community groups to intervene, including the Women’s Legal Education and Action Fund (LEAF), the Canadian Human Rights Commission, the Canadian Labour Congress the Canadian Bar Association and numerous others.
Dale Gibson and Associates, with Khullar as an associate, were the solicitors for the (pro-equality) intervener called the Alberta and Northwest Conference of the United Church of Canada. An article by Khullar, “Vriend: Remedial Issues for Unremedied Discrimination,” was cited by the Supreme Court in the decision. The lead counsel representing Vriend was Sheila Greckol (later a justice of the Alberta Court of Appeal) and cocounsel Douglas Stollery. At the time, Greckol was at Chivers Carpenter, and Khullar eventually joined that firm, became a partner, and then managing partner.
Chivers Carpenter defines itself as “union-side labour lawyers who restrict our practices to labour, employment, administrative and human rights law.” The current managing partner of the firm, Kristan McLeod, took over the role when Khullar was appointed to the bench. McLeod says Khullar is “smart,” “thoughtful,” “compassionate,” “organized,” “a very hard worker” and “generous in terms of identifying work opportunities for others.” When pushed for any possible downsides in Khullar’s character, McLeod says there are none, but then adds that Khullar doesn’t have much patience for judgmental people (which, of course, is actually a good quality, and McLeod readily points out the irony of a non-judgmental “judge.”)
While she was in private practice, Khullar worked on pro bono cases related to unions, women’s rights and the rights of persons with disabilities. She was cocounsel for LEAF in the Supreme Court of Canada case of R. v. Ewanchuk, which questioned the defence of “implied consent” and identified the lower court’s reliance on myths and stereotypes about women. Before she was appointed to the bench, Khullar worked (along with McLeod and others) on R. v. Barton, a case which ended up in the Supreme Court of Canada in 2019 and which dealt with whether consent to a specific sexual activity is consenting to any degree of force. In another pro bono case, McKay-Panos v. Air Canada, a case that lasted almost a decade, Khullar argued that obesity can be a disability for the purposes of flying.
Chief justices have the unenviable and perhaps impossible job of being irreproachable, objective decision-makers.
Khullar’s experience and areas of legal expertise may be heartening to Albertans concerned about the leadership and apparent goals of the current UCP government. But her background should not be interpreted as bias. Her job is to interpret and apply the law, not to make the law. Still, there is comfort in knowing that the arguments of all parties will be fully considered should cases involving recent eyebrow-raising, if not ire-raising, legislation work their way up the legal ladder to the Alberta Court of Appeal. Litigation contenders might include the Alberta Sovereignty within a United Canada Act, the Alberta Pension Protection Act, the Provincial Priorities Act, the Municipal Affairs Statutes Amendment Act, 2024, and the threatened legislation to restrict the rights of transgender and nonbinary children and youth. The province has at least 12 active legal challenges against the federal government. And Albertans can expect that if any decision of the Court of Appeal is unfavourable to the UCP government, the UCP will apply for leave to appeal to the Supreme Court of Canada (cost to taxpayers be damned).
Chief justice Khullar is clearly not in her job for magazine coverage or photo ops. She declined an interview for this article. Unlike her predecessors, she doesn’t even have a Wikipedia page. Perhaps due to the workload or the tradition of judges remaining impersonal and communicating primarily through written judgments and legal reasoning, she seems to have gone particularly quiet media-wise after the initial news flurry about her appointment and swearing-in as chief justice.
We know some biographical facts, such as her legal education and professional experience. We know (from a short article published after her swearing-in) that she watches Jeopardy! And we know from the Judges Act that justices of the Alberta Court of Appeal are paid $338,800 each, and the chief justice is paid $371,400. According to Khullar’s 2016 judicial application questionnaire, she does not speak French, she is a mother and she is married. Lawyers I spoke with all reported along the same theme of “she has a big brain and an ability to work with people.”
Should we be curious or impressed (or concerned) that we don’t know more about the top justice in our province? Certainly Khullar has good reason for staying off the media radar; the public chat of justices can backfire. Take the extreme case of US Supreme Court justice Clarence Thomas, who, in an attempt to appear as a “non-elite” member of society, said he preferred vacations in Walmart parking lots over beaches, only to have journalists reveal, and revel in, proof that for decades he had been taking luxury vacations involving superyachts and private jets. Short of such bald-faced lies, even simple true statements from a justice can be misinterpreted and used to suggest character flaws or judicial bias, especially in these politically polarized times.
Most Canadian justices adhere to a philosophy of restraint, of keeping their personal lives and personal views private. Part of this is to support a work–home balance and a semblance of a “normal” life. And part of it is to maintain the appearance of impartiality. As the familiar maxim goes, although usually not with respect to judges’ personal views and lives, not only must justice be done, it must be seen to be done. Or, as the Canadian Judicial Council put it: “After appointment, judges are not required to withdraw from the world. They may lead a normal life in the community, while retaining a sense of the dignity of judicial office and realizing that the public expects virtually irreproachable conduct from judges.” (Italics mine.)
Irreproachable conduct. That’s a tall order, well beyond any “reasonable person” test that might be applied in a court case. While most of us would not be embroiled in the kind of alleged “obnoxious behaviour” and physical altercation at a posh Arizona resort that led to the early retirement of Supreme Court of Canada justice Russell Brown in 2023, who among us has conducted every day of our lives irreproachably? No wonder most justices shy away from public outreach—not to be confused with the more limited outreach to their legal community, which most justices seem more open to. Khullar’s first speaking appearances after she was sworn in as chief justice were at the annual historical dinners, in Calgary and Edmonton, hosted by the Legal Archives Society of Alberta. In March she attended the respective 2024 judges dinners put on by the Calgary and Edmonton bar associations.
And yet, the Chief Justice of the Supreme Court of Canada, Richard Wagner, ever since his appointment in late 2017, has promoted transparency in all Canadian courts, and encouraged leadership through outreach beyond the courts. In an era when trust in the Canadian judicial system is declining, and distrust of authority, experts and even accepted facts seems to be at an all-time high, speaking about the court’s role and conduct, when legally and ethically appropriate, might be a good way for senior justices to bolster confidence in our court system.
Chief justice Wagner has held several news conferences, framed as “updates” on the work of the Supreme Court. In his 2022 update he commented on the US Supreme Court’s reversal of Roe v. Wade, a case which resulted in the removal of the federal right to abortion. While Wagner didn’t give his personal views on abortion, he did speak about how the Canadian judicial system works differently and is non-polarizing. He used his own appointments—to the Supreme Court by the Harper government and to chief justice by the Trudeau government—as an example of non-partisanship. But he stressed, as he often does in his updates, that we must remain vigilant in keeping Canada’s judiciary independent.
In 2019 Wagner praised the transparency of (now retired) Supreme Court justice Clément Gascon, who publicly discussed his struggles with mental health. And in a 2023 news conference he addressed justice Russell Brown’s resig-nation from the Supreme Court and answered concerns about how the Brown issue might have affected the court’s decisions and process. (Of note, the vacancy created by justice Brown’s resignation was filled with the much-lauded appointment of Mary Morneau, a former chief justice of the Alberta Court of King’s Bench.) In the same 2023 news conference, which lasted an hour and included questions from journalists, Wagner acknowledged the impor-tant role of journalism and media in bringing issues to the court’s attention and in upholding democracy.
As much as journalists and the general public might welcome more-transparent justices, this leaves the people who take on this important role, particularly chief justices such as Khullar, with the unenviable and perhaps impossible job of being irreproachable, objective decision-makers and outspoken leaders. Small wonder that some prefer to adopt a closed-door policy.
The mandatory retirement age for federally appointed justices is 75. If chief justice Khullar remains in her current role until then—the year 2039—the public might not hear many of her out-of-court opinions. But once she retires she might decide to be more forthcoming, thus following in the tracks of a few other prominent Alberta-raised justices, most notably retired Supreme Court of Canada chief justice Beverley McLachlin, who, a few months before the end of her judicial term, granted this magazine a sit-down interview at her office in Ottawa (see “Canada’s Top Judge,” Sep 2016, in AV’s online archives). She later released her memoirs, Truth Be Told. Or retired Alberta Provincial Court judge John Reilly, who has published a trilogy of books about his judicial work in First Nations communities.
Until then, we’ll have to trust that chief justice Khullar channels some of the key traits she identified in her mentor Dale Gibson, including “courage, creativity… and foresight,” and that, with her help, the slow and rarefied Court of Appeal will continue to show up for beleaguered Albertans.
Barb Howard is the author of five books, including Happy Sands in the Brave and Brilliant series from University of Calgary Press.
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