The way Supreme Court of Canada justices are selected is about to change, and the new selection process could leave Atlantic Canada without a jurist on the top court.
On Tuesday, Prime Minister Justin Trudeau announced the application process will be open so any qualified Canadian lawyer or judge who is functionally bilingual and "representative of the diversity of our great country" can apply for the top court.
Former prime minister Kim Campbell will chair the new independent advisory board that will recommend candidates.
Trudeau announced the board will review applicants and submit a short list of three to five individuals for consideration. The board's recommendations are non-binding.
The short list will then be reviewed by a list of interested parties, including the chief justice of Canada, provincial and territorial attorneys general, relevant cabinet ministers, opposition justice critics and some House of Commons committees.
Applicants will have to fill out a questionnaire, and some answers from the prime minister's eventual nominee will be made public.
The prime minister said Wilson-Raybould and Campbell will appear before Parliament to discuss the selection process. Then, a number of MPs and senators from different parties will have a chance to question the eventual nominee before they are officially appointed.
Snub to Atlantic Canada?
But the national composition of the selection committee — and its mandate to search across the land for a new justice — has some observers in Atlantic Canada concerned that the region could lose the spot on the top court traditionally reserved for their region. Justice Thomas Cromwell, a Nova Scotian and the only justice hailing from the Atlantic provinces, will retire from the bench in September, which leaves a hole in the court's regional composition.
The Prime Minister's Office confirmed Tuesday that there is no guarantee that Cromwell's seat will go to someone from the region.
"Applications are being accepted from across Canada in order to allow for a selection process that ensures outstanding individuals are considered for appointment to the Supreme Court of Canada," a spokesperson said in an emailed statement.
Andrew Parsons, Newfoundland and Labrador's minister of justice and public safety, said it would be "difficult to see" them wipe out regional representation and that it would be a "concern" if his region is shunned.
"It's hard not to be disappointed when we know that convention has dictated that there will be regional representation on the highest level of the court. It doesn't sound like it will be picked based on region," he said in an interview with CBC News, while noting it was hard to argue with Trudeau's push for greater openness and transparency in the selection process.
Parsons said jurists from his province in particular should be carefully considered given Newfoundland has never had a native son or daughter sit on the Supreme Court. "We felt that it was our time," he said.
Moreover, the requirement that new appointees be functionally bilingual could torpedo some worthy candidates without the necessary language skills. But that stipulation could also be to New Brunswick's advantage given its status as the country's only officially bilingual province.
Justice Marc Richard, a jurist on the New Brunswick Court of Appeals, and academic Anne La Forest, the daughter of former Supreme Court Justice Gérard La Forest, have been suggested as possible picks from that province.
J. Michael MacDonald, an anglophone from Cape Breton, and the current chief justice of Nova Scotia's Court of Appeal, is another option given his relative fluency in French.
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Rob Nicholson, the former justice minister under Stephen Harper, and the current Conservative justice critic, said failing to guarantee a spot for Atlantic Canada is a slap in the face to voters in that region that have been kind to Liberal politicians in recent years.
"Every single federal member of Parliament from Atlantic Canada, and every single premier, is a Liberal, and collectively they have failed to guarantee their region's representation on the top court in the country," he said in a statement.
"Regardless of the process he chooses, Conservatives urge the prime minister to adhere to the long-standing convention that at least one justice of the Supreme Court come from Atlantic Canada as he seeks to replace Justice Cromwell."
Justice minister defends criteria
Justice Minister Jody Wilson-Raybould said Tuesday the government is "not moving away" from the convention that Atlantic Canada gets a seat on the bench, but said for this particular appointment there will be a broader pool of candidates.
"We are mindful of regional representation, but we're also equally committed to ensuring that there is a diversity of candidates from different backgrounds that have the ability to put their name forward," she said in an interview on CBC News Network's Power & Politics, noting she is hopeful Indigenous candidates will apply.
She said it's not without precedent to eschew regional representation. However, an analysis of past justices appointed from Nova Scotia, New Brunswick and P.E.I. reveals the region has never gone more than a year without a spot on the top court since its creation in 1875.
The longest gap was between the death of Nova Scotia's Edmund Newcombe in December 1931 and the appointment of New Brunswick's Oswald Crocket in September 1932.
The government's next opportunity to appoint an Atlantic Canadian would be in September 2018 when Chief Justice Beverley McLachlin hits the mandatory retirement age of 75, unless another judge retires early or dies.
Wilson-Raybould also defended the requirement that all Liberal picks for the bench will be bilingual — adding all Canadians have a right to be heard in both official languages at the highest court in the land, even if that disadvantages appointees from regions of the country without a strong tradition of working in both English and French.
Nominees to be questioned
The way Canada's top judges are appointed was criticized under the previous Conservative government, when then-Prime Minister Stephen Harper tapped Marc Nadon, a semi-retired Federal Court of Appeal judge, for one of three slots reserved for judges from Quebec on the top court.
In a 6-1 ruling, the Supreme Court quashed Nadon's appointment, arguing it was against the Quebec-specific provisions in the Supreme Court Act.
The court also said the government needs a constitutional amendment to change the criteria for judges on the Supreme Court.
Besides Campbell, the seven-member advisory board includes:
- Camille Cameron, dean of the Schulich School of Law at Dalhousie University and chair of the Canadian Council of Law Deans.
- Jeff Hirsch, president of the Federation of Law Societies of Canada and partner in a Winnipeg law firm.
- Stephen Kakfwi, former premier of the Northwest Territories and president of the Dene Nation.
- Lili-Anna Pereša, president and executive director of Centraide of Greater Montreal.
- Richard J. Scott, former chief justice of the Manitoba Court of Appeal, and current counsel, arbitrator and mediator at a Winnipeg law firm.
- Susan Ursel, senior partner with a Toronto firm and chair of the Canadian component of the African Legal Research Team.
The application period ends Aug. 24.