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Ottawa picks NL jurist for Supreme Court

Thursday, October 27, 2016 @ 8:00 PM | By Cristin Schmitz

Prime Minister Justin Trudeau’s pick for the Supreme Court of Canada is a strong-minded, incisive and hard-working jurist, with a stubborn streak, who doesn’t suffer fools gladly — in court or out, say lawyers and judges who know him.

At press time Justice Minister Jody Wilson-Raybould, and former Progressive Conservative Prime Minister Kim Campbell, chair of the Liberal-appointed Independent Advisory Board for Supreme Court of Canada Appointments, were slated to appear before a Commons committee this week to respectively explain the rationale for — and the process leading up to — the government’s choice of longtime Newfoundland Court of Appeal Justice Malcolm Rowe, 63, to replace Nova Scotia’s Thomas Cromwell, who retired Sept. 1.

The proposed appointment of the avid outdoorsman whose parents hailed from small fishing villages is historic as Newfoundland’s first to the top court since the province joined Canada in 1949. The move was welcomed by the Canadian Bar Association, the Atlantic Provinces Trial Lawyers Association (which said it will therefore shelve its lawsuit against Ottawa), and others who objected to the Liberal government’s expressed willingness to appoint a jurist from outside Atlantic Canada to the only seat reserved by constitutional convention to that region.

However the nomination of another white male to join the long line of white male Atlantic Canadian Supreme Court judges stretching back to 1875 also dashed hopes raised by the Trudeau government’s pledge to create a more diverse judiciary, particularly on the highest bench.

“The fact the Supreme Court has never had an appointment from the Newfoundland and Labrador legal community makes this nomination especially significant and welcome,” observed Osgoode Hall Law School dean Lorne Sossin.

Sossin pointed out that Justice Rowe, who got his law degree from Osgoode in 1978 and is called to both the Ontario and Newfoundland bars, “brings important areas of expertise around international law, public law and criminal law, among other fields.”

Yet Justice Rowe’s appointment also leaves “much unfinished in the project to have the court reflect the country it serves, particularly in the sense that the court also has never had an indigenous member or a member from a racialized community,” Sossin noted by e-mail.

Clyde Wells, former Liberal premier and ex-Chief Justice of Newfoundland and Labrador, predicted Justice Rowe — who enhanced his French language skills to the required level of “functional” bilingualism by taking intensive instruction through the National Judicial Institute last August — will excel in his demanding new role.

“I think it’s a superb appointment and I think he will make a great contribution as a jurist,” said Wells, who as premier became familiar with Rowe’s key strategic role as a lawyer supporting federal fisheries minister (and subsequently Newfoundland premier) Brian Tobin in the mid-1990s during the Canada-EU overfishing conflict known as the “turbot wars.”

“I was quite impressed with his knowledge and abilities in dealing with the intricacies of the international law surrounding that fight,” the former chief justice recalled of Rowe, who assisted both Tobin, and Tobin’s Conservative predecessor as fisheries minister, John Crosbie, while Rowe was a partner at Ottawa’s Gowling and Henderson for 12 years.

Under Tobin, Rowe went on to be clerk of the Executive Council (top public servant) and secretary to the cabinet of Newfoundland and Labrador in 1996, where he spearheaded the constitutional amendment that replaced Newfoundland and Labrador’s church-run school system with a public, secular one. In 1999 he was appointed to the trial division of the Newfoundland and Labrador Supreme Court.

Two years later he was elevated to the Court of Appeal, where Wells sat with him for almost half of Justice Rowe’s 15 years there. Wells said he found his colleague to be a highly intelligent, knowledgeable and “impressive” judge who quickly identified and assimilated the critical issues in a case.

“He would have decisions out very quickly,” Wells recalled. “He wrote very well. He was able to distill the issues quite concisely, and he disposed of them in a concise and effective manner.”

Chief Justice Derek Green, Wells’s successor as top judge in Newfoundland and Labrador, said Justice Rowe’s “groundedness” has been important at the Court of Appeal “not only in the judgments it produces, but in the behind-the-scenes discussions leading to those judgments. He is a very structured and analytical thinker who contributes greatly to clarity of thinking in any discussion,” the chief justice explained by e-mail. “He will be missed. He can, when circumstances warrant, be cerebral. He also has a good sense of the need to be aware of the community.”

Chief Justice Green pointed out that the judge is “not a recluse.” He is sociable and in his off-hours, he likes to sail, sea kayak and downhill ski (off-course) in the backcountry. “He also owns a motorcycle.”

Now remarried, Justice Rowe is divorced from Moya Greene, former Canada Post CEO and current CEO of the U.K.’s Royal Mail, with whom he has a grown daughter.

Wells said that as a judicial colleague, “I never had a moment’s concern about him. He was a superb performer and I could rely on him to do his work well, and without any difficulty on my part. Some people may have felt that he wasn’t always as pleasant or personable as they may have liked to have seen him, but I never had any difficulty.”

Wells advised counsel appearing before the judge to be well-prepared. “He is very intelligent and highly capable himself, and he expects those who work with him on the bench, or before him at the bar, to perform in a professional and competent manner.”

In court, he remembered, Justice Rowe “required lawyers to answer very clearly, and to make a sound and logical and legally based argument rather than what I would call more loose, insignificant comment, and he was perhaps not as tolerant of that kind of argument. And maybe he shouldn’t have been.”

Randolph Piercey, a senior criminal lawyer in St. John’s who has appeared many times before Justice Rowe at the Appeal Court, and occasionally when he was a trial judge, said “he doesn’t tolerate fools. He’s got that sort of reputation. He expects you to be prepared and he asks pointed, relevant questions at all times.”

Piercey’s advice to counsel? “Don’t waste his time…Understand what you’re talking about. Get to the point.”

As the judge himself remarked during a lengthy trial in which a lawyer pushed back against the judge’s efforts to control the proceedings, some judges say almost nothing during a trial — but that is not his style.

Piercey also served with Justice Rowe on the federal Judicial Appointments Advisory Committee for Newfoundland and Labrador, which the judge chaired from 2006 to 2012. “He was much more soft-spoken there than he was on the bench,” he remarked. “He’s not mean on the bench. He’s not rude on the bench. But if you’re dilly-dallying, or if you’re off-point, if you’re wasting time, he’s going to tell you.”

While the judge had no known background in criminal law before joining the bench, he was open to learning and “now understands criminal law very, very well,” said Piercey. “I appreciate when a judge is prepared to say to me: ‘I don’t understand that. Tell me.’ He’s the sort of person that doesn’t automatically assume that just because he’s a judge, he knows better than you do…He’s prepared to take instructions from counsel.”

He said the judge treads the middle ground in criminal law, which comprises half the Supreme Court’s docket. As defence counsel, “you didn’t walk into the courtroom and say ‘Oh good, it’s Judge Rowe,’ and the Crown didn’t walk into the courtroom saying ‘Oh good, it’s Judge Rowe.’ He has written leading cases on sentencing for the appeal court. He’ll do us proud,” Piercey predicted.

Appointed a Queen’s Counsel by Campbell in 1992, Justice Rowe’s concise and clearly written application for the Supreme Court offers a glimpse into how he sees that court’s mission. “The Supreme Court maintains and develops the structure of law in Canada,” he wrote. “Stability and predictability are important to maintain that structure. But, adaptation to changes in society, including changes in shared goals, is critical to the law’s development. It is important to operate from first principles, while also considering practical results. It is no less important to eschew ideological positions. Should the court lead or mirror a shared sense of justice? The answer is, of course, both. Generally, it should lead when the time is ripe to do so, having regard to the needs and aspirations of Canadians.”