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Ottawa sticks with new process to fill Supreme Court vacancies

Thursday, November 03, 2016 @ 8:00 PM | By Cristin Schmitz


Despite some pushback from the organized bar, the federal government says it is sticking with a new process for choosing Supreme Court judges that recently gave lawyers a rare glimpse into the mind of its first nominee, Justice Malcolm Rowe.

At the Commons Justice Committee Oct. 24, Justice Minister Jody Wilson-Raybould said she was very pleased with the reforms that culminated in her government’s choice of the 63-year-old Newfoundland and Labrador Court of Appeal judge.

“Further refinements” are possible, but the government intends to use the new process for future Supreme Court appointments, including the vacancy expected in 2018 when the Chief Justice of Canada, Beverley McLachlin, reaches mandatory retirement, she said.

“We believe our selection process is in keeping with the values of Canadians today and that it will…support a modern Supreme Court of Canada that is reflective of, and responsive to, those values,” Wilson-Raybould said of her government’s expressed willingness to depart from the constitutional convention of regional representation on the top court in order to appoint the first indigenous or racialized jurist to that bench.

“Applications were invited from anywhere in the country to support our goal of ensuring that our highest court moves towards a better and fuller reflection of the diversity of Canadians,” Wilson-Raybould explained. “This was also to ensure that the most outstanding jurists in the country, regardless of where they live, have the opportunity to be considered for vacancies as they arrive, and for which they are eligible.”

Alluding to objections from the Canadian Bar Association (CBA), the Atlantic Trial Lawyers Association and others in Atlantic Canada to the prospect of that region losing its reserved seat on the court, she said: “I recognize the concerns expressed by some that this opening up of the process occurred at the expense of ensuring regional diversity on the court. With great respect for the sincerity of those who feel this way. I do not share this view. The breadth and depth of expertise on Canada’s bench and bar in every part of the country is quite remarkable. I am convinced that…at any given time, there will be outstanding individuals across Canada who will choose to put their names forward for a given vacancy. This will ensure that the Supreme Court’s regional character is maintained.”

Former Progressive Conservative prime minister Kim Campbell, chair of the non-partisan independent “advisory board” that devised the unranked short list of five candidates from which Prime Minister Justin Trudeau chose Justice Rowe, lauded the process and its results.

She told the committee her five-member group (comprising also representatives of the Canadian Judicial Council, CBA, Federation of Law Societies of Canada and Association of Canadian Law Deans) received 31 applications from across Canada, of whom less than half were female jurists.

The board solicited nominations and input from as many legal organizations (23) as possible during the short time available (the government announced it would accept applications Aug. 2, with an application deadline of Aug. 24). The board also invited applications from individuals whose names were suggested by others.

“Almost all” the applicants had considerable ability in French, with “only a very small number” not having any facility in French at all, Campbell said. The applicants were identified by number — to minimize the possibility of bias based on name recognition — and each board member reviewed the applications independently “so there was no group-think. There was no influence initially by one member on the other, she explained. The group then met to see where they agreed and disagreed and to discuss each candidate.

The board decided to interview 10 candidates in Ottawa, all of whom were tested for their language abilities. A standardized questionnaire/script was used to contact each applicant’s referees, and for the candidates’ interviews. “We allowed an hour for the interviews although I will say Justice Rowe, as you will find, is a man of few words and I thought the interview was going to be over in 10 minutes,” Campbell recalled. “But as soon as we asked him to elaborate on some issues, we got a lot more information.”

Campbell said it was “very, very difficult” to whittle down to five candidates because of the “richness” of the pool, including from Atlantic Canada (which produced at least two of the five shortlisted jurists).

Campbell, who was Canada’s first female federal justice minister, praised the new process. She said previous prime ministers and their justice ministers have always tried to find very good people for the top court, but throwing the process open to applications from anyone who qualified was a step forward. “You didn’t have to know somebody,” she emphasized. “As all of us who’ve fought to increase diversity, to increase the representation of non-prototypical people in various fields, we know that sometimes people just don’t notice those who are not like them or that they don’t encounter in their daily lives,” Campbell explained. “Having a process which basically allowed any lawyer in Canada to put himself or herself forward for consideration I think was really wonderful. It meant that if you weren’t in the gaze of the normal advisers, you could still be considered.”

Campbell also said it was important the advisory board carried out its mandate in an independent and non-partisan way. “Our whole focus was to look for competence,” she stressed. “The government may have a view about a [judicial] philosophy or whatever. That was not our view. Our view was to provide to the prime minister a list of candidates who were very, very competent and who brought with them a richness of perspective that would be an adornment to the court.”

Wilson-Raybould explained the government chose Justice Rowe partly because of his varied professional career — as a litigator, foreign service officer and deputy minister to the premier of Newfoundland (he was also head of the civil service in that province), where Rowe co-ordinated efforts that culminated in a constitutional amendment creating a public, non-denominational school system. “His wide range in experience in both public practice and the public service will bring a rich and nuanced perspective to the court,” Wilson-Raybould said. She also cited his “impeccable reputation,” personally and professionally. “A man of integrity, his career exhibits a strong commitment to public service and combines rigorous legal knowledge with open-mindedness and respect for others.”

Coming from Newfoundland, he also brings “a unique perspective that has never been present” on the Supreme Court, she pointed out.

In his own question and answer session the following day with MPs and senators gathered at a University of Ottawa hall filled with law students, Justice Rowe succinctly and clearly expressed his views on many subjects including: the respective roles of judges and politicians; the so-called Charter “dialogue” theory; the rape shield law and victims’ rights; and his favorite Supreme Court judge (the late John Sopinka).

As a judge, courtroom advocacy matters to him, he told NDP Justice critic Murray Rankin. “I have found oral argument to be enormously important — enormously important. You sit in your chambers. You read stacks of materials. You identify issues. You work through what seem to be the strengths of the issues and weaknesses, and then you go into the courtroom and hear from counsel. And there’s a dynamic in the courtroom, with good counsel at least,” he observed. “If someone stands there and drones away with a précis of their factum, it probably isn’t too effective, but good counsel really get to the point and [to] what this case turns on.”

Known as a stickler for preparation, and for peppering counsel with incisive questions, Justice Rowe said he aims to find the “clarity in the position and the analysis being put forward…It’s not about arguing with the counsel. It’s about understanding the structure of the argument and saying: ‘How do you respond to this other view? Tell me how you would explain this, or why the view put forward by the other side shouldn’t apply here.’ And so it’s a process of understanding, and sometimes it takes a lot of questions. Sometimes it takes a few questions. But you, of course, must give counsel an opportunity to make their case.”

Asked by Conservative Justice critic Rob Nicholson to address the challenges that lie ahead with respect to the constitutional and treaty rights of indigenous Canadians, Justice Rowe said defining those rights “is very, very much a work in progress.

“I think it would be unwise for the court to get out ahead of a process which I truly hope will be a process of reconciliation,…which will come through nation-to-nation dealings. And, in a sense, the court should stand a little apart from that. Always, always bearing in mind that if a First Nation, or some group of indigenous persons, wishes to vindicate their rights before the court, they have a right to be heard and to receive a remedy where that is warranted.” He called it “fundamental” to see Aboriginal rights and treaties through the eyes and history of the indigenous peoples.