In Supreme Court nominee Richard Wagner of Quebec, Prime Minister Stephen Harper appears to have chosen what in hockey terms is known as a "role player" – someone with a particular skill the team needs. His expertise is in corporate-commercial law, and his nomination fills a gap in the court's skill set created when Ian Binnie retired last October. His constitutional writings are scant.
The Prime Minister may have felt that the court's need was so pressing it obliged him to overlook qualified female candidates, such as Madam Justice Marie-France Bich, and Madam Justice France Thibault, both of the Quebec Court of Appeal. Judge Bich has been on the province's highest court since 2004, and Judge Thibault since 1998. Mr. Justice Wagner, 55, has been on the appeal court only since February of last year.
Judge Wagner's nomination alters the court's gender balance – there will be just three female judges, instead of four, now that Madam Justice Marie Deschamps is being replaced by a man. Judge Deschamps had expressed a wish that Mr. Harper would keep the gender balance the same. We agree that Mr. Harper should try to do so. He will have two more opportunities in the next two years, both of them in Quebec, as the court's two other judges from that province are approaching 75, the mandatory retirement age.
Eugene Meehan, a lawyer specializing in the Supreme Court, argues that the court should stress "talent, ability and experience" over gender balance, and that doing so is a sign of national maturity. But women of similar "talent, ability and experience" can surely be found in the senior ranks of today's bench and the legal profession. Still, the court is facing a greater number of commercial and corporate issues, as Canada's regulatory system collides with an evolving global economy. Judge Wagner has the bona fides in this important area.
Fears that Mr. Harper would "politicize" the bench have not materialized in any of his five appointments, and it would be absurd to conclude that Judge Wagner was chosen on the strength of his late father, Claude, having served as a federal Progressive Conservative MP. His father was also a provincial Liberal in Quebec, and in any event, Judge Wagner was appointed to the Quebec Superior Court by the federal Liberals, demonstrating respect for his abilities across party lines.
Judge Wagner has a solid legal background. There are women of similar talent and experience who can fill one or both of the next two appointments.