New Brunswick judges among leading Supreme Court contenders: sources

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Two judges in New Brunswick who were appointed by previous federal Liberal governments are among the leading contenders from Atlantic Canada for an opening on the Supreme Court of Canada, Liberal insiders say.

They are Marc Richard, one of two remaining Liberal appointees on New Brunswick's Court of Appeal, and Lucie LaVigne, who was named by the Liberals to the next highest level of court, the Court of Queen's Bench. Both applied for the Supreme Court job under the federal Liberals' new appointment process that for the first time invited applications from the public, the sources said. If Justice LaVigne is chosen, the nine-member Supreme Court would for the first time since its creation in 1875 have a majority of women.

Of the two, Justice Richard is the better known. He was a high-profile litigator before he joined the appeal court in 2003, while Justice LaVigne specialized in family law. And as a court of appeal member, he belongs to the level of court from which most Supreme Court judges are chosen. Justice LaVigne joined the Court of Queen's Bench in 2001.

Related: Canada's bench strength: Meet the judges, new and old, of the Supreme Court

New Brunswick Attorney-General Serge Rousselle, an advocate for minority-language rights, is also among the nine applicants from the Atlantic provinces, sources in the region say.

Prime Minister Justin Trudeau has stipulated that functional bilingualism is a requirement for appointees to the Supreme Court.

Mr. Trudeau is expected to announce the appointment soon. He has received a short list of three to five names from an advisory committee, which had a deadline of Sept. 23. He has not said whether the new Supreme Court judge will be from Atlantic Canada. The region has always had a seat on the court, and is without one because of the retirement of Thomas Cromwell of Nova Scotia. Mr. Trudeau invited applications from anywhere in Canada. In a fact sheet, the government promised the short list would include Atlantic Canadians.

Because of Mr. Trudeau's bilingualism requirement, attention is turning to New Brunswick, the only officially bilingual province.

(In Nova Scotia, leading jurists include Court of Appeal Chief Justice Michael MacDonald and Court of Appeal Justice Joel Fichaud, both Liberal appointees.)

Justice Richard has a powerful advocate in his corner: the province's Chief Justice, Ernest Drapeau. The Chief Justice is the only other Liberal appointee on the province's Court of Appeal, and he has privately urged the government to appoint Justice Richard to the Supreme Court, multiple sources told The Globe. The Chief Justice also speaks very highly in private of Justice LaVigne, legal sources said.

Some legal observers consider Chief Justice Drapeau the most brilliant jurist the province's top court has ever had, but he is in his mid-60s and has told friends he is not seeking the Supreme Court job. He is friends with Dominic LeBlanc, a federal Liberal cabinet minister from New Brunswick who is close to Mr. Trudeau. Mr. LeBlanc's wife, Justice Jolène Richard of the New Brunswick Provincial Court, worked for Ernest Drapeau's law firm when both were still in private practice. (Mr. Rousselle has his own connection to Mr. LeBlanc; he retained the federal cabinet minister's brother-in-law, André Richard, to argue a case for the provincial government at the appeal court.)

Justice Marc Richard was a Crown prosecutor before becoming one of the province's top litigators, with a well-rounded practice. In one of his best-known cases, he defended William Stillman in a major 1997 search-and-seizure case at the Supreme Court. Mr. Stillman, 17, had been accused of a rape-murder of a 14-year-old girl, and police had taken hair samples and an imprint of his teeth by threat of force. The defence argued that police violated Mr. Stillman's constitutional rights. (Mr. Stillman's conviction by a jury was upheld by the province's Court of Appeal.) The Supreme Court overturned the acquittal and ordered a new trial.

As an appeal-court judge, Justice Richard denied bail to convicted murderer Dennis Oland last February, saying it would harm public confidence in the justice system to grant him release while he appeals his conviction.

"Marc's biggest hurdle may be that he's not a woman," one Liberal insider said on condition of anonymity, in reference to a widespread view that diversity is a priority in the government's judicial appointments. (In its first 15 appointments to the federal bench, just three were white men.) But as an Acadian – a descendant of French colonists – he can claim to be a member of a minority.

Justice LaVigne, a graduate of the University of New Brunswick law school, was appointed by the Liberal government of Jean Chrétien in 2001. She has been president of the Canadian chapter of the International Association of Women Judges, and has served on the organizing committee of judicial-education conferences on gender and the law. She was a lawyer in private practice from 1980 to 2001.

In August, Justice LaVigne rejected a case brought by Mi'kmaq communities in the Gaspé peninsula against the province of New Brunswick and a Calgary-based company, Chaleur Terminals Inc., to stop a project to bring oil by rail to a nearby port, which they feared would harm salmon in the event of a spill.

"The government was required to make reasonable efforts to inform, consult and, if necessary, accommodate Aboriginal peoples," she wrote. "I conclude the Applicants were informed, they had reasonable opportunities to express their concerns and their concerns were taken seriously. The fact that the Crown could have done more to consult or accommodate does not necessarily render the Crown's efforts unreasonable."

One of Justice LaVigne's two daughters is a lawyer who articled at the Supreme Court.

Mr. Rousselle is at the centre of a controversy over whether French- and English-speaking children should ride school buses together. He was education minister last year when he learned that a community in the southeastern part of the province had eight buses carrying a total of 92 francophone and anglophone children, a violation of provincial policy mandating separate bus systems for children in the country's two official language groups. He said publicly that he would seek to enforce the policy out of concern that the majority language would dominate conversation on the buses. And he asked the province's Court of Appeal to rule on whether the Constitution requires separate busing in New Brunswick. That case is still before the court.