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Ontarians led 31 hopefuls for SCC spot

Thursday, January 26, 2017 @ 7:00 PM | By Cristin Schmitz

Indigenous, racialized, LGBTQ2 and disabled jurists did apply for the recent vacancy on the Supreme Court but the Trudeau government won’t say how many — if any — were among the 10 candidates interviewed, or the five-person short list from which a white male was appointed last October.

Despite pledging more transparency in the appointment of Supreme Court of Canada judges, the government declined to tell The Lawyers Weekly whether the long and short lists of candidates for the vacancy filled by Newfoundland and Labrador Court of Appeal Justice Malcolm Rowe, 63, included any indigenous, racialized, LGBTQ2 jurists or jurists with disabilities —notwithstanding Ottawa’s public commitment to a more diverse federal judiciary, including on the Supreme Court bench.

“In fact, apart from looking at the result — which is we got an [older] white man — it’s very difficult to know how it played out, and what importance diversity played in the process,” said University of Ottawa law professor Sébastien Grammond. “Unless they are prepared to reveal the [demographic] composition of the short list, we don’t know.”

Surprisingly, it emerges that Ontarians predominated among those who applied to fill what is regarded to be, by convention, Atlantic Canada’s seat on the top court, according to a report released by the government before Christmas.

“Upper Canadians, what can I say? Entitlement, entitlement, entitlement,” reacted one Atlantic Canadian judge. “I know Toronto thinks it’s the centre of the universe but…we can’t have that,” added the judge, who spoke on condition of anonymity. The Supreme Court “was set up to be representative of the whole country.”

That sentiment did not seem to dampen the ambitions of jurists outside Atlantic Canada, who actually made up the bulk of applications — 17 — according to a Nov. 25 report to Prime Minister Justin Trudeau from the Independent Advisory Board for Supreme Court of Canada Judicial Appointments.

Of the 31 jurists from across Canada who threw their hats into the ring (if tradition is any guide, many were Court of Appeal judges), more than one-third (11) hailed from Ontario.

The next highest number of applicants — seven — was from New Brunswick, the province with the most bilingual jurists in Atlantic Canada. That was followed by: four applicants from Newfoundland and Labrador; three applicants each from Nova Scotia and Quebec; and one applicant each from Manitoba, Saskatchewan and British Columbia. No jurists from Prince Edward Island applied, possibly because functional bilingualism was a prerequisite.

Male applicants predominated 18-13.

Notably, diverse jurists did apply. They self-identified with these characteristics: Indigenous (4); visible minority (3); LGBTQ2 (2); disabilities (2); and ethnic/cultural or other (12).

However Justice Minister Jody Wilson-Raybould’s spokesperson declined to say how many jurists in each of these categories — if any — were among the 10 jurists who were interviewed by the board chaired by former Prime Minister Kim Campbell, or the five candidates who made it to the short list the board presented to Trudeau.

“The long and short lists for the Supreme Court vacancy included both male and female jurists from diverse backgrounds and from different regions of Canada,” David Taylor, Wilson-Raybould’s director of communications said by e-mail. “The application process was confidential, so releasing more detailed data at this time would potentially compromise that commitment to the applicants.”

Taylor did not explain how the applicants’ confidentiality could be compromised by disclosing how many, if any, of the four indigenous jurists, three visible minority jurists, two LGBTQ2 jurists and two jurists with disabilities actually made it through the initial cull of the 31 applicants.

The board’s report also reveals that anglophone applicants vastly outnumbered francophones. Only seven of the 31 applicants identified as francophone, while 24 were anglophone.

While jurists outside Atlantic Canada applied for the vacancy after Ottawa said it wasn’t bound by the convention of regional appointments, the Liberals did appoint an Atlantic Canadian after political pushback and litigation from trial lawyers in the region.

Its choice to abide by the regional convention — and the likelihood that any future departure from the convention will trigger more litigation — makes it less likely that so many jurists from outside the West will apply for the next expected vacancy — in British Columbia — when Chief Justice Beverley McLachlin reaches mandatory retirement in 2018, Grammond predicts. “If the regional representation [convention] does not hold then anyone on a Court of Appeal who is longing for a Supreme Court appointment one day would rationally apply,” he observes. But “if the regional representation convention is still, in practical terms, in existence I think that’s a waste of time and energy, if we know that someone from the West or B.C. will be appointed anyway.”

Grammond advises that if the government really wants to break with regional representation, “I think the right thing to do is to bring a reference now” to the Supreme Court.