Supreme Court nominee Malcolm Rowe grilled on French, diversity and Aboriginal rights

Prime Minister Justin Trudeau's pick for the Supreme Court, Newfoundlander Malcolm Rowe, is peppered with questions from the justice committees about his fluency in French, his background as an Atlantic Canadian of European descent, and his vision for the top court.

1st judge from Newfoundland and Labrador nominated to serve on top court

Justice Malcolm Rowe takes part in a question-and-answer session with members of the House of Commons justice committee in Ottawa. (Adrian Wyld/Canadian Press)

Prime Minister Justin Trudeau's pick for the Supreme Court, Newfoundlander Malcolm Rowe, stared down members of the House and Senate justice committees on Tuesday, as they peppered him with questions about his fluency in French, his background as an Atlantic Canadian of European descent, and his vision for the top court.

Rowe, who began his opening remarks in French, earned praise from a number of committee members — including Bloc Québécois interim Leader Rheal Fortin — for his relative fluency and the quality of his accent.

"Is my French perfect? No," Rowe conceded, but added that he is committed to taking language immersion courses to bolster his comfort level. (Albertan Chief Justice Beverly McLachlin did the same after her appointment to the bench.)

He did say he could understand, and read, the language effortlessly — a requirement under Trudeau's new appointment process — but said his speaking skill was less capable.

People of colour

Despite the praise for his French, Rowe fielded tough questions about the government's decision to appoint a white man to the court, after Justice Minister Jody Wilson-Raybould promised the next appointment would represent the "diversity" of Canada.

Independent Liberal Senator Mobina Jaffer, the first South Asian woman to practise law in Canada, congratulated Rowe on his appointment, but said the country is evolving and regional representation cannot take precedence over diversity on the bench.

"Today 20 per cent of Canadians are people of colour," Jaffer said. "However, not even one Supreme Court justice represents their reality. This is not acceptable. This is 2016.

"There is no one representing their realities. How will you represent all Canadians in the highest court of our country?"​

Rowe said he was a "function of his own experience," but that he has long sought to understand the circumstances of all new Canadians. He pointed to his work with the non-profit leadership organization Action Canada, where he spent time mentoring young Canadians from disparate backgrounds.

"All I can do, personally, is to seek to bring the understanding that I've gained from speaking with others, from understanding their circumstances, to bear as best I can. The composition of the court is not in my hands, it's in the hands of others. I will be mindful, sensitive and aware, and I [won't] disappear into an ivory tower."

Jaffer pleaded with Rowe to represent the young men and women from minority backgrounds when making decisions.

"I will give you my deepest commitment to seek to do so always," Rowe said.

Justice Rowe on why he wants to be on the Supreme Court

6 years ago
Duration 1:54
Mr. Justice Malcolm Rowe took part in a question-and-answer session at the University of Ottawa with members of the House of Commons and the Senate, where he was asked why he wants to be a Supreme Court Justice.

He stressed his bona fides with respect to Indigenous people, pointing to his role in crafting his province's rules around the use of sentencing circles for some Indigenous offenders.

Under questioning from Senator Murray Sinclair, the former head of the Truth and Reconciliation Commission, Rowe said that he thought reconciliation was best achieved through a nation-to-nation relationship rather than through protracted litigation in the courts, while affirming the right of all Canadians to pursue legal action if a charter right is infringed.

"In terms of moving forward, through institutions, it's governments and Indigenous leadership. The courts could make a mistake if they move too quickly to define things that are better defined on a nation-to-nation basis," Rowe said, while noting Indigenous rights to the land are entrenched in the Constitution Act, 1982.

Historic appointment

The prime minister launched a new Supreme Court justice selection process this summer, appointing a group of lawyers and legal scholars to sort through applications for the bench.

The group, led by former prime minister Kim Campbell, drew up a list of five possible candidates, and Trudeau ultimately picked Rowe, a justice who sits on Newfoundland and Labrador's Court of Appeal.

The appointment is historic in that Newfoundland and Labrador has never had a representative on the Supreme Court since it joined Confederation in 1949.

Minister of Justice and Attorney General of Canada Jody Wilson-Raybould looks on as Justice Malcolm Rowe answers questions from members of the Commons justice committee. (Adrian Wyld/Canadian Press)

Rowe said he thought his upbringing — the son of a fisherman from a small outport village, and the first of his family to attend university — was beneficial to the court's disposition.

"The impact of decisions can be different in different parts of the country, and it's important to have no blind spots," Rowe said in response to a question from Nova Scotia Liberal MP Colin Fraser. "It helps to have voices from across the country to give a sense of the wholeness of the country, and its components."

Trudeau's pick neutralized criticism that his new countrywide appointment process would put an end to the convention of designating a seat on the top court for an Atlantic Canadian.

"We are a sort of distinct society in our own way," Rowe said of Newfoundland. "But it's just another piece of the mosaic. If I lived my whole life in Newfoundland, I think I would have been more limited in what I could bring to bear to the court."

'Creating law'

In his application, Rowe said he sees an active role for the top court in crafting laws, rather than simply interpreting them.

"The Supreme Court is not, primarily, a court of correction. Rather, the role of the court is to make definitive statements of the law, which are then applied by trial judges and courts of appeal. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it," he wrote.

He qualified his remarks Tuesday, and said that he was largely referring to cases that involve charter rights.

"From time to time, where it is found that there's an infringement of those rights … it is the duty of courts to craft a remedy," he said.

But he said that with respect to legislative decisions made by Parliament, there should be a degree of deference. "The Supreme Court should seek to define the intention of Parliament, and give effect to it."

Rowe 'hesitated' to apply

The Newfoundland jurist said he "hesitated" to put his name forward for the top court, and leave his native province, because the job comes with such an "enormous responsibility."

He showed modesty by revealing the anxiety he felt at the prospect of sitting on a court once populated by the likes of former justices Bertha Wilson, Brian Dickson, Antonio Lamer and, his personal favourite, John Sopinka.

"Did I want to take on that heavier cloak of responsibility? I finally said, you know, my country has been darn good for me, and if I can do something for my country, then I want to do it. So, I presented my candidacy and it was for others to decide, and I can't tell you how happy I am to be here."

The justice committee will meet again on Thursday and indicate whether or not it supports Rowe's nomination to the Supreme Court of Canada. 

Should the prime minister wish to proceed with the appointment, the candidate could be sworn in as early as Oct. 31, 2016. 

Justice Malcolm Rowe said he was reluctant to apply for a spot on the Supreme Court, now, he says, "I can't tell you how happy I am to be here." (Adrian Wyld/Canadian Press)