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Grit diversity push for top court criticized as ‘political correctness’

Thursday, August 25, 2016 @ 8:00 PM | By Cristin Schmitz

Some lawyers and judges are pushing back against the federal government’s controversial stance that it might set aside constitutional convention by replacing soon-to-retire Supreme Court of Canada Justice Thomas Cromwell with a jurist from outside Atlantic Canada, with the aim of building a more diverse bench.

The Canadian Bar Association (CBA) wrote Prime Minister Justin Trudeau Aug. 10 urging him to “honour regional representation” when filling all Supreme Court vacancies. René Basque, the CBA’s new president, told The Lawyers Weekly his 36,000-member association welcomes many of Ottawa’s reforms to the appointment process, which include putting a CBA representative on the non-partisan advisory board now creating a short list of candidates.

But the Moncton, N.B., lawyer stressed in an e-mail: “We would like to see the highest court continue to represent all regions of Canada. Representation of regions, legal systems and population all bring the range of knowledge and perspectives that inform the law.”

However, the Indigenous Bar Association argues that appointing an indigenous judge to the Supreme Court for the first time is more important now — when so many cases implicate indigenous rights, treaties, history and laws — than ensuring that the next judge hails from the one of the four Atlantic provinces.

Most of the bench and bar of Atlantic Canada disagree, said one judge from that region, speaking on condition of anonymity.

“Universally people feel that it’s a slap in the face. It’s looking at leaving Atlantic Canada out, and there’s really no need for doing it,” the judge explained. “If they want to appoint an Aboriginal person to the Supreme Court, there’s no [qualified] Aboriginal jurists in Atlantic Canada, but there’s lots of them in British Columbia, probably. And if that’s the case, wait two years [until Chief Justice Beverley McLachlin of B.C. retires]. They don’t need to do this.”

(There is also speculation rife within the legal community that Atlantic Canada’s Supreme Court seat would be restored soon in any event since New Brunswick Chief Justice Ernest Drapeau —who is close to Dominic LeBlanc, Atlantic Canada’s ranking minister in the Trudeau cabinet —could be appointed to succeed Chief Justice McLachlin as top judge.)

If the government does opt to depart from the convention of regional representation, it could trigger a constitutional challenge, as Chief Justice McLachlin herself acknowledged when she declined to comment about the government’s new appointment process at the CBA council’s annual meeting here Aug. 11.

Moreover, judges from both within and outside the Atlantic region privately expressed concerns to The Lawyers Weekly, including complaining the government is acting hastily, without adequate consultation, in its expressed willingness to breach the regionalism convention, and querying how the appointment process will unfold if all Supreme Court vacancies are to be opened up from now on to jurists from across the country.

For example, should an appellate judge from the West apply to succeed Justice Cromwell, who departs Sept. 1, since there is no apparent guarantee that the next B.C. or Prairie vacancies will be filled by Western jurists in future? And if the top court’s seats are no longer to be allocated by region, might fluently bilingual Federal Court judges from Quebec (now barred from a Quebec seat on the Supreme Court by virtue of the top court’s Nadon decision) now be eligible to replace Justice Cromwell, or to fill vacancies from Ontario and the West?

Ontario Superior Court Justice Colin McKinnon of Ottawa predicted unforeseen and negative consequences for the country if Atlantic Canada loses its reserved spot on the court. “Meaningful reform is incapable of being attained on the fly,” he suggested. “My own view is that the constitutional convention should trump considerations of what has to be called political correctness. The Supreme Court of Canada is a fundamental institution that should, like Parliament, reflect the…nation and, in order to reflect the nation, it must have representation from the entire country. That’s why the convention exists, and it seems to me the integrity and the constitutional validity of the court would be compromised if a candidate were not chosen from Atlantic Canada.”

Agreed a judge from the Atlantic region “a process that produced [Atlantic Canadian Supreme Court Justices] Gerard LaForest, Michel Bastarache and Thomas Cromwell was not bad at all.”

Yet that process has so far yielded only white male Supreme Court judges from Atlantic Canada. Justice Minister Jody Wilson-Raybould recently said her government seeks to appoint “functionally bilingual” Supreme Court judges “of the highest calibre who represent the diversity of our country” to a bench that has not yet had an indigenous or other non-white member.

“The next appointment to the Supreme Court of Canada will not necessarily be a person from Atlantic Canada,” she told the Commons Justice Committee Aug. 11. “Having said that, we recognize the importance of regional representation.”

The Vancouver ex-Crown and senior First Nations leader confirmed that the new process, and criteria, for appointing Supreme Court judges she unveiled Aug. 2 could result in a departure from what she conceded can be fairly described as a century-old “constitutional convention” that the top court includes one judge from Atlantic Canada (as well as two from the West, three from Ontario and, by statute, three from Quebec). She also said the government intends to use the same process for future appointments.

“The prime minister has specifically asked the advisory board to provide a list of three to five qualified and functionally bilingual candidates, and that includes candidates from Atlantic Canada,” she said. “In making that selection he has asked that the board consider the custom of regional representation on the court.”

(Bilingual judges from Atlantic Canada whose names are circulating as potential candidates include: New Brunswick Court of Appeal Justice Marc Richard; Nova Scotia Chief Justice Michael MacDonald; New Brunswick Court of Queen’s Bench Justice Lucie LaVigne; and P.E.I. Supreme Court Justice Gordon Campbell.)

“Diversity within the Supreme Court itself is important for two main reasons,” Wilson-Raybould explained. “First, bringing together individuals with various perspectives and life experiences enriches the collegial decision-making process of the court. Second, a Supreme Court that reflects the diversity of the society it serves enhances public confidence in the court. The assessment criteria therefore require that candidates be considered with a view towards ensuring that members of the Supreme Court are reasonably reflective of the diversity of Canadian society.”

Ontario’s new attorney general, Yasir Naqvi, called the federal government’s effort to make the Supreme Court process more transparent “a very important step in ensuring that Canadians continue to have confidence in our highest courts.”

However the provincial Liberal government is taking a wait and see approach on the question of regional representation, he told The Lawyers Weekly. “I don’t want to be hasty in pronouncing judgment on the process — it is a new system,” he explained. “We know, constitutionally, certain seats are guaranteed for Quebec. But I think the transparency aspect is very important, and we should give some time for the system to develop before engaging in further conversations.”

The terms of reference for the non-partisan “Independent Advisory Board for Supreme Court of Canada Appointments” that is creating a short list of three to five “qualified” and “functionally bilingual” candidates from across Canada to fill the Cromwell vacancy stipulate that it should “seek to support the government of Canada’s intent to achieve a gender-balanced Supreme Court of Canada that also reflects the diversity of members of Canadian society, including indigenous peoples, persons with disabilities and members of linguistic, ethnic and other minority communities including those whose members’ gender identity or sexual orientation differs from that of the majority.”

The seven-member board, chaired by former Prime Minister Kim Campbell and also comprising jurists picked by the CBA, Canadian Judicial Council, Federation of Law Societies and Canadian law deans as well as two non-lawyers chosen by Wilson-Raybould, are directed to consider a long list of specific “assessment criteria” in devising their short list. “The chief consideration for any appointment is a person’s ability to perform, and achieve excellence in, judging,” the government stipulates.

Several judges from Atlantic Canada remarked that the government has drastically cut down the pool of potential candidates by emphasizing diversity and insisting that all appointees must be “functionally bilingual” (defined as, at minimum, being able to read and understand, without translation, oral argument in English and French, but “ideally” to also be able to converse in both languages).

“I can’t imagine a white man, quite frankly, applying” for the vacancy, said one judge, explaining the opportunity “is just not going to be there. That’s not where Trudeau wants to be.”

Criteria for the post include: “demonstrated superior knowledge of the law; superior analytical skills; ability to resolve complex legal problems; awareness of, and ability to synthesize information about, the social context in which legal disputes arise; clarity of thought, particularly as demonstrated through written expression; ability to work under significant time pressures requiring diligent review of voluminous materials in any area of law;” and “commitment to public service.”

Under the rubric “institutional needs of the court,” the advisory board is directed to choose candidates who will ensure “a reasonable balance between public and private law expertise, bearing in mind the historic patterns of distribution between those areas in Supreme Court appeals; expertise in any specific subject matter that regularly features in appeals and is currently under-represented on the court;” and that the members of the Supreme Court are reasonably reflective of the diversity of Canadian society.”