Newfoundland and Labrador is asking the federal government to fill a coming Supreme Court vacancy this summer with an appointee from that province, setting up a possible confrontation over Prime Minister Justin Trudeau's vow that all appointees to the court will be functionally bilingual.
The province says it has never been represented on the country's highest court since it joined Confederation in 1949. The appointment will be the first for the Trudeau government. Of the court's nine judges, seven were chosen by prime minister Stephen Harper.
"It is worth noting that it took PEI just 28 years from their date of Confederation to have representation on the SCC bench," provincial Justice Minister Andrew Parsons says in a letter to federal Justice Minister Jody Wilson-Raybould made public on his department's website. "By comparison, it has now been 67 years since Newfoundland and Labrador's Confederation and we remain the only Atlantic Canadian province to have never had representation on the SCC bench. … I strongly feel, as do many Newfoundlanders and Labradorians, our time has come."
His letter did not mention the bilingualism requirement. A 2011 study found that none of the judges on the province's appeal court could hear a case in French without translation, and that none have even "some knowledge" of French. Since then, some new judges have been appointed, and others have been studying the language.
"There is at least one justice in the province who is functionally bilingual and there are currently six others taking regular French language lessons," Justice Department spokesman Luke Joyce said in an e-mailed statement to The Globe and Mail. His statement did not take issue with the government's insistence on bilingualism.
Two senior lawyers contacted by The Globe mentioned appeal court Justice Michael Harrington, a Rhodes Scholar, as an exceptionally bright mind and a possible candidate for the Supreme Court. He is not functionally bilingual. Justice Laura Mennie, the only functionally bilingual judge on either of the two highest courts, joined the Newfoundland and Labrador Supreme Court only in 2014.
Justice Thomas Cromwell, who is from Nova Scotia and is bilingual, intends to retire from the federal Supreme Court on Sept. 1. By convention, Atlantic Canada always has a judge on the Supreme Court.
But "there is no strong convention about which province should get the next appointment – except that it should not be NS as that was Cromwell's province – and the idea is to spread around the one Atlantic position on the Court," Peter Russell, a political science professor emeritus at the University of Toronto, said in an e-mail.
New Brunswick is Canada's only officially bilingual province. Before Justice Cromwell, however, it received two appointments in a row – Gérard La Forest and Michel Bastarache, both francophones – and the previous turn belonged to Nova Scotia. "There's not really a convention about sharing it around" in Atlantic Canada, said Wayne MacKay, a law professor at Dalhousie University in Halifax.