Newfoundland and Labrador will remain the only province never to have a judge on the Supreme Court of Canada when the federal government fills the next opening. The Liberals have decided no one from that province fits its qualifications for the country's highest court – and a lack of bilingual candidates appears to be the stumbling block.
The province has not had a representative on the Supreme Court since it joined Confederation in 1949. A job on the court comes open on Sept. 1, with the retirement of centrist Justice Thomas Cromwell of Nova Scotia.
In March, the province's justice minister, Andrew Parsons, made an unusual public demand that the next judge come from Newfoundland and Labrador. By convention, the job is to be filled by a representative of Atlantic Canada. Before Justice Cromwell, the two previous judges from the region, Michel Bastarache and Gérard La Forest, came from New Brunswick.
Prime Minister Justin Trudeau has set up a small committee of cabinet members, including Justice Minister Jody Wilson-Raybould and Government House Leader Dominic LeBlanc, whose job is to create a short list of candidates from which the Prime Minister may choose, according to a source.
It is Mr. Trudeau's first appointment to the top court. Seven of the nine judges on the Supreme Court were appointed by Mr. Trudeau's predecessor, Stephen Harper.
An initial task of the committee was to determine whether anyone from Newfoundland and Labrador met the government's qualifications, which Mr. Trudeau has said include functional bilingualism.
"The first task they were asked to do was to make sure there were no candidates who would fit the Prime Minister's profile from Newfoundland and Labrador, because Newfoundland and Labrador has never had a person on the Supreme Court," the source said. "I'm given to understand that that's been done, that no one has been identified that would meet the Prime Minister's requirements."
A separate source in Newfoundland and Labrador said the province was asked whether any judges of the appeal court are functionally bilingual, and that the province said no. A 2011 study found no judges on the appeal court could hear a case in French and none had even "some" knowledge of the language. In March, the justice department said at least one judge on a lower court is functionally bilingual and six other judges were taking French lessons.
Jerome Kennedy, a practising lawyer in St. John's and a former provincial justice minister, said in an interview that while bilingualism is important, simultaneous translation can assist judges during hearings, and other characteristics are also important.
"If there is a judge with the proper qualifications, then that individual should be approached and asked if they are willing to learn French. If we stop at the first step, that there are no qualified judges because they don't speak French, we're essentially eliminating Newfoundland and Labrador from having a judge sit on the Supreme Court of Canada, and in my view, that's not appropriate in the year 2016."
Joanne Ghiz, a spokeswoman for Ms. Wilson-Raybould, declined to comment, saying no appointment process has been announced yet. Mr. Parsons' office was not prepared to comment on Tuesday.