New Brunswick

Supreme Court diversity requirement 'a huge change,' law prof says

A new selection process for Supreme Court justices has the legal community in Atlantic Canada worried the region will be without a jurist on the country's top court.

New selection process for Supreme Court justices concerns Atlantic Canada legal community

Nicole O'Byrne, an associate law professor at UNB, says the request for diversity in justices sitting on the Supreme Court could mean Atlantic Canada will not be represented on the country's highest court. (CBC)

A new selection process for Supreme Court justices has the legal community in Atlantic Canada worried the region will be without a jurist on the country's top court.

Nicole O'Byrne, an associate professor at the University of New Brunswick faculty of law, told Information Morning Fredericton the change represents "a huge change in direction by the government."

Prime Minister Justin Trudeau has opened nominations for a soon-to-be-vacant Supreme Court of Canada seat to all regions and asked a new non-partisan hiring advisory board to ensure Canada's ethnic diversity on the Supreme Court bench is reflected in its recommendation.

Traditionally, when a justice retires the appointment goes to someone from the same region of the country.

Justice Thomas Cromwell of Nova Scotia will retire next month but there's now no guarantee his replacement will come from Atlantic Canada.

Justice Thomas Cromwell has announced he will retire in September. (Philippe Landreville/Supreme Court of Canada Collection)
O'Byrne said the constitutional convention has been to maintain a balance of three justices from Ontario, three from Quebec, two from Western Canada and one from Atlantic Canada.

The mandate calling for diversity on the court creates a particular problem for Atlantic Canada, said O'Byrne. 

"It's difficult because the challenge here is Atlantic Canada is one of the least ethnically diverse areas of the country," said O'Byrne.

"It just so happens that as the government has decided to change directions on diversity, the next spot open on the court is one that represents typically a region of the country that is not ethnically diverse as other areas of the country."

O'Byrne said the makeup of the court has been criticized in recently for not reflecting the true diversity of the country. For example, the justices rule on First Nations cases but not one of them is Aboriginal.  

"This is an enormous shift in direction, the significance of which it's hard to understate because now we are looking at diversity not just regionally, but they want to diversify the court on the basis of the identity of the judges," said O'Byrne.

Diversity needs to be encouraged

She said the challenge for Atlantic Canada is that there's no longer a guaranteed seat on the court.

She said the legal community has to do a better job of encouraging more ethnic minorities and people of different backgrounds to go to law school, pass the bar and work in the region.

There's no longer a guarantee of an Atlantic seat and that's got a lot of people alarmed.- Nicole O'Byrne, UNB associate law professor

​O'Byrne said she's optimistic about the new process because it will include diverse and under-represented candidates, even though it may be challenging to put into practice.

"The people making the decision will keep all of these different kinds of diversity in mind, but there's no longer a guarantee of an Atlantic seat and that's got a lot of people alarmed," she said.

The candidates who apply for the open Supreme Court seat are required to be functionally bilingual and represent all regions of the country while writing laws.

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