The Liberal government intends to continue making Supreme Court appointments open across the country rather than choosing from specific regions as has been the long-established Canadian practice, Justice Minister Jody Wilson-Raybould says.
The move keeps alive the controversy – including within the government's own caucus – about safeguarding regional diversity on the Supreme Court. By law, the court has three members from Quebec, and by convention, three from Ontario, one from Atlantic Canada and two from the West. A cross-Canada competition creates a possibility of a court with new configurations of members, or with some regions left out for a time.
But it also means a wider opportunity to seek ethnic, racial and gender diversity, and possibly the first indigenous judge on the Supreme Court, which was established in 1875.
The new process "reflects the faces and voices of Canada," Justice Minister Jody Wilson-Raybould told the Commons justice committee. "We believe our selection process is in keeping with the values of Canadians today, and that it supports a modern Supreme Court of Canada that is reflective of and responsive to those values." She said that within that process, regional representation would be maintained. She did not explain in detail, but pointed out that the process requires some candidates on the shortlist to be from Atlantic Canada.
The committee meeting featured the Justice Minister explaining why Prime Minister Justin Trudeau and the Liberal cabinet nominated Justice Malcolm Rowe of the Newfoundland and Labrador Court of Appeal to the Supreme Court. Ms. Wilson-Raybould also answered questions about the process, as did former Progressive Conservative prime minister Kim Campbell, who chaired an independent advisory board that crafted a short list of five names that included Justice Rowe, 63.
Mr. Trudeau's first Supreme Court nomination was the first to invite applications, and the first to open the competition nationally – even though it was to fill a vacancy left by retiring Nova Scotia judge Thomas Cromwell. The Commons voted 270-0 urging the government to respect the "custom" of regional representation, and a lawyers group filed a court challenge to any attempt to go outside the region. In the end, the Liberals chose the top court's first nominee from Newfoundland and Labrador.
Conservative MP Rob Nicholson, a member of the committee, said in an interview after the meeting that the government should name judges by region. "It should follow the constitutional convention and have each area of this country represented. I mean, Ontario is not the same as Prince Edward Island. British Columbia is not the same as Quebec. … It's a confederation and it's important all regions continue to be represented."
Frederick Vaughan, author of a history of the Supreme Court, said in a telephone interview from his home near Halifax that he would like the process opened up, and the federal government missed the opportunity by appointing an Atlantic Canadian.
"Once they chose Rowe, the government locked themselves in," he said, adding that the new process is a cosmetic change and the government will stick with regional representation.
University of Calgary law dean Ian Holloway said by e-mail that the subject deserves a proper debate.
"If the convention on Court composition goes, then how can we assure ourselves that there will be any regional balance at all?"
Some legal observers say they support opening the process.
"Insofar as the PM wants to canvass the broadest possible pool, I think it makes sense," University of Ottawa law professor Carissima Mathen said in an e-mail. "It does, though, mean that there is continued uncertainty regarding the government's position on the custom of regional representation." She said more court challenges are possible, perhaps even a question brought to the Supreme Court on the constitutionality of the change.
Outside the committee hearing, Ms. Wilson-Raybould went further than she did inside in explaining why Mr. Trudeau chose Justice Rowe: "He is an incredible jurist of the highest quality and the best candidate. He is functionally bilingual; he has an in-depth knowledge of the law and an understanding of the social context in which he has made decisions." She said, citing his written application, that he understands the Supreme Court judges' role in a constitutional democracy – Justice Rowe had said their role is to make law, not simply apply it. She also cited his 15 years as a volunteer in Action Canada, a national leadership development program.
During the hearing, Ms. Campbell said 31 candidates applied, slightly less than half of whom were women and that the advisory board interviewed 10. Not everyone who applied was functionally bilingual.