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Drapeau seen as inside track SCC contender

Thursday, April 07, 2016 @ 8:00 PM | By Cristin Schmitz

Senior members of the legal community speculate the Trudeau government will elevate New Brunswick Chief Justice Ernest Drapeau to the Supreme Court of Canada, citing his strong credentials, fluent bilingualism and close friendship with Dominic LeBlanc, the senior federal cabinet minister for Atlantic Canada.

If he is promoted to the top court later this year to replace Justice Thomas Cromwell, Chief Justice Drapeau, 64, would also be in the running to become the next chief justice of Canada —and the first Acadian — succeeding Beverley McLachlin of British Columbia when she retires in the next two years, said several sources who spoke on condition of anonymity.

“I would put my money on Drapeau, presuming he wants it, and everybody seems to think he would,” remarked a Liberal from New Brunswick.

Appointing the chief justice from Atlantic Canada — which has happened only twice since 1875 — would be controversial since the Supreme Court’s administrative leadership usually rotates between Quebec and the rest of Canada.

However, Chief Justice Drapeau is a close family friend of Liberal House leader LeBlanc, himself an Acadian lawyer from Moncton and scion of Pierre Trudeau-era cabinet minister and former governor general Romeo LeBlanc. As the senior cabinet minister from the Atlantic Canada region, and confidant and boyhood friend of Prime Minister Justin Trudeau, LeBlanc is believed by senior members of the legal community to have considerable say over who will be Atlantic Canada’s next representative on the top court, when Nova Scotian Cromwell retires Sept. 1.

If Chief Justice Drapeau is indeed on the inside track for appointment, partly because of LeBlanc’s influence, it raises questions whether Ottawa’s not-yet announced process for Supreme Court appointments — including the behind-the-scenes consultations Ottawa usually undertakes with the attorneys general of the four Atlantic provinces, Chief Justice McLachlin, bar groups and local benches and bars — will be more or less pro forma and political window dressing.

The Liberals pledged in their election platform to introduce “a government-wide open and merit-based appointments process” that “will ensure gender parity and that more indigenous peoples and minority groups are reflected in positions of leadership.”

Chief Justice Drapeau is widely described as an able administrator, with a strong intellect and broad knowledge of the law, and academic leanings. In 1974 he graduated first in his class at the University of New Brunswick law school, where Frank McKenna, New Brunswick’s former Liberal premier, was his classmate and friend. Chief Justice Drapeau grew up in Moncton in a large family of modest means, and speaks and writes clearly in both official languages — a distinct advantage since the Liberals have pledged that all their Supreme Court appointees will be functionally bilingual.

A successful civil and criminal litigator (both prosecution and defence) in private practice before he was appointed to the New Brunswick Court of Appeal in 1998 by prime minister Jean Chrétien, Chief Justice Drapeau had been an active Liberal before he went to the bench, sources said. Chrétien appointed him chief justice in 2003. He is married to prominent New Brunswick artist Gisèle Léger-Drapeau, with whom he has three grown daughters.

Chief Justice Drapeau, a vice-chair of the Canadian Judicial Council, sparked speculation about his future in New Brunswick while presiding over Dennis Oland’s second high-profile bail proceeding March 7. In noting Oland’s appeal of his second-degree murder conviction should be heard “as soon as possible” — not pushed into 2017 as defence counsel speculated it might have to be — the chief justice decided to tentatively schedule the appeal for next October in order to keep the case on track. “I'm looking, gazing into the crystal ball. I'm looking at 2017 and I might not even be a justice of the Court of Appeal at that time,’’ the chief justice mused, according to a CBC report — sparking rumours that he was thinking of retiring.

Justice Cromwell’s March 22 announcement that he will retire early, after only seven years with the top court, stunned the legal community across Canada. The departure of the 63-year-old jurist is not due to health reasons, a Supreme Court spokesperson confirmed, triggering speculation about what the highly respected judge and former law professor might be planning next in his career.

Sources say the other leading New Brunswick contender to replace Justice Cromwell is New Brunswick Court of Appeal Justice J.C. Marc Richard, in his mid-50s, another intellectually strong, academically minded and fluently bilingual jurist. Called to the bar in 1985 after earning his law degree at the University of Moncton and a master of law at the London School of Economics, he worked as a provincial Crown and as a civil litigator, before joining the Court of Appeal in 2003. Not known to be involved in partisan politics while in practice, he was elected president of both the New Brunswick Law Society and the New Brunswick branch of the Canadian Bar Association. He is president of the Canadian Superior Courts Judges Association. Married, with one daughter, Justice Richard was in the news most recently when he denied Oland’s bail application Feb. 17, stating that the public respects the jury system and releasing a convicted murderer pending appeal would undermine public confidence in the administration of criminal justice.

Since the top court’s inception, jurists from New Brunswick have predominated in the Supreme Court’s Atlantic seat, having been appointed four times, while Nova Scotians have been appointed three times. Consequently the government of Newfoundland and Labrador, which has never produced a Supreme Court judge but wants one, and Prince Edward Island — which has had but one Supreme Court chief justice, 90 years ago — will no doubt tell Ottawa that their jurists deserve serious consideration.

“I’m not sure how the present government will see it in choosing its appointment — there are a lot of factors that it will have to consider, no doubt,” remarked Clyde Wells, former premier and ex-Chief Justice of Newfoundland and Labrador. “And hopefully they will consider potential Newfoundland nominees,” he told The Lawyers Weekly, “…and bearing in mind the fact that there has not, in the 67 years of Newfoundland’s history as a province of Canada, been a nominee, it would seem a reasonable thing to do.”