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The ONW Salon:

Moderator Susanna Kelley:  Supreme Court Chief Justice Beverley McLachlin is retiring on December 15th.  That means not only will Justin Trudeau need to appoint another Justice for the Court, he will have to name a new Chief Justice.  What kind of candidate should Canada be looking for, and are there any names that might be under consideration? We asked Richard Mahoney, John Capobianco and Tom Parkin.

 

 

Tom Parkin:

Supreme Court Chief Justice Beverley McLachlin has announced her retirement and the Prime Minister will now name a new Chief Justice from the Supreme Court bench and a new Justice of the Supreme Court.

Unlike our U.S friends, Canada has long – and wisely – rejected partisanship in court appointments. To my mind, partisanship in court appointments leads to torqued legal thinking, which undermines the judicial process – and the legitimate power of the Commons and provincial legislatures.

So it is a bit worrying that in the last weeks, Trudeau has been unrepentant about making partisan appointments to non-partisan watchdog jobs. His attempt to appoint Madeleine Meilleur as Official Languages watchdog was a huge overreach and Trudeau has had to back down. However, his ministers and pundits are still saying Liberal partisans can be watchdogs over Liberal governments.

Absolutely not. Remember, these are key jobs like the Chief Electoral Officer, Ethics Commissioner, Auditor General and Budget Officer.

There was also an overreach on Trudeau’s first Supreme Court appointment. In that case, Trudeau sent signals that he might diverge from convention and not replace a retiring Atlantic Justice with another person from Atlantic Canada. After a backlash (though not from Atlantic Liberal MPs), Trudeau relented to convention.

I am hoping these experiences have pulled Trudeau back. We’ll see.

Chief Justice McLachlin was from the BC Court of Appeal. By tradition, the position of Chief Justice alternates between a person from Quebec and someone from another province. And by convention, one Supreme Court Justice is from BC.

So, assuming Trudeau follows convention – and I would think he would be foolish not to as it might set up an awkward echo to the failed Nadon appointment – his selection for Chief Justice would be drawn from the three Quebec Justices - Suzanne Cote, Richard Wagner and Clement Gascon. And he is looking for a new appointment from BC, mostly likely from the appeal court.

 

John Capobianco:

First off, let's congratulate Chief Justice McLachlin for her distinguished career on the bench - her 36-year Justice career, with 28 of them on the top court as well as being the longest serving Chief Justice - no small feat.

There is no question that Ms. McLachlin will leave the office having made a significant mark on the bench. Like any other appointment, she will have supporters and detractors, but very few will ever question her abilities and she will go down in history as an effective Justice.

One of the most critical appointments any Prime Minister has the power to make is that of Justice to the Supreme Court. For obvious reasons, the kind of appointment the PM makes will have an impact on many issues and rulings, so much so that it is watched and analyzed by many in the media, experts in law and pundits. We have seen in the U.S. the incredible hang up when it comes to filling a vacant seat on the Supreme Court as it can turn decisions based on left/right votes for years, even decades depending on the makeup of the court.

So with the announcement that Chief Justice McLachlin is to leave the bench at the end of this year, all eyes will be on the PM to determine who and how he is going to select the next Justice. The PM has campaigned on transparency and ensuring non-partisan, quality-based appointments to the Senate and other quasi-judicial boards and commissions. This will be the ultimate test of that promise.

 

Richard Mahoney:

The Rt. Hon. Beverley McLachlin has been an outstanding judge and a landmark Chief Justice. She is the first woman to hold the post of Chief Justice. She has also held that post longer than any predecessor. She helped open up the Supreme Court and make its proceedings more accessible to Canadians. She fiercely resisted some inappropriate attempts by the Harper government to politicize the Court. She has a knack for clearly written, principled judgements whose impact will live on for generations. Chief Justice McLachlin speaks with candour and is, by all accounts, an honourable person. There is little doubt she is one of the most impactful Canadians of her generation, and many, if not most, Canadians would not recognize her if they bumped into her on the street.

Tom does his usual stretch to try and find something negative to say about the Prime Minister. In this case, he invents an “overreach” that never happened in the process of the appointment of Mr. Justice Malcolm Rowe of Newfoundland and Labrador to the Supreme Court.

A little history on how judges are appointed.  Supreme Court Justices are appointed by the Governor in Council (Cabinet) on the recommendation of the Minister of Justice. Traditionally, Prime Ministers have been very involved in these appointments, although they have largely stayed away from partisan appointments, focussing on appointing qualified people and using a traditional regional and linguistic balance. Prime Minister Paul Martin introduced the concept of some parliamentary review of the appointment process in 2004, resulting in the appointment of Justices Charron and Abella, two outstanding women from Ontario. While Stephen Harper originally followed the Martin precedent in his first appointment (already underway before the 2006 election) he quickly dispensed with parliamentary oversight for his remaining appointments.

Prime Minister Trudeau brought in a new process, requiring an application process, and appointing an advisory committee, headed up by former Conservative Justice Minister and Prime Minister Kim Campbell, with representation from the legal profession and judicial bodies, among others. That was the process followed in the appointment of Mr. Justice Rowe, and I expect it will be followed again in finding a replacement for Justice McLachlin.

 

Tom Parkin:

If the Chief Justice is chose from the Quebec Justices, there are three candidates. Richard Wagner has five years on the Supreme Court, Suzanne Cote and Clement Gascon just three years. Cote, very unusually, was appointed directly from private practice. All other Justices served at trial and appeal courts.

Richard Wagner (with Cote and Justice Brown) dissented in an interesting decision about student leader Gabriel Nadeau‑Dubois – known as GND in Quebec – who was recently elected to the National Assembly representing Quebec Solidaire. GND and other students had set up picket lines around post-secondary institutions to enforce a tuition strike. Another student obtained an injunction requiring picketers to allow him to pass through the picket line. In an interview GND said the injunctions would be ineffective and the picket lines were legitimate. In response, the line-crosser filed a motion of contempt and GND was found guilty at trial court. He was acquitted on appeal, which was upheld by the Supreme Court.

Appointing Wagner may be fodder for the PQ and the growing Quebec Solidaire and therefore not much appreciated by Quebec Liberals.

Another possibility for Chief Justice is Clement Gascon, appointed by Harper in 2014. In his first decision, Gascon dissented from the Court’s decision that the federal government could destroy gun registry data. That sounds more comfortable. And Gascon comes via Heenan Blakie, the law firm of Pierre Trudeau and Jean Chretien.

By convention, there is one Justice from BC. Again, I would assume Trudeau doesn’t want to mess with BC, especially with pipelines and a new and possibly unfriendly government about to take power. I strongly suspect Trudeau will appoint a woman. In a profession so evenly divided between men and woman and a court that would otherwise only have two women, I don’t believe accusations of tokenism would carry far.

This is, of course, Justice Minister Judy Raybould-Wilson’s backyard and a province with many unceded territories, and a prospective pipeline that will likely trigger strong legal opposition and civil unrest. Someone with treaty expertise would be logical, but that might not suit Trudeau’s pipeline agenda.

 

John Capobianco:

Richard's accurate take on how a judge is appointed is how it has been written, but make no mistake about the influence the PMO has in who is ultimately favoured for the position. Our process is far cleaner than that of the U.S., where it can be devastating for a career of a nominee who gets put through the very public wringer of Senate confirmation hearings. Our process has become far more transparent and, over the years, fairer.

The appointment of former PC Prime Minister Kim Campbell to head up an advisory committee reviewing applications for future judges was a shrewd move by the PM - to bring in a conservative, albeit a very red conservative, to head up the committee. At the very least she is a lawyer and understands the judicial system.

What makes this appointment even more important is that with Chief Justice McLachlin leaving, the role of Chief Justice is vacant. Thus any appointment will be watched more carefully, and there are many names and capable individuals who can and should join the bench.

Tom mentions a few and there will many more bandied about until the appointment is made, with many considerations being looked at to ensure a fair and equitable bench. I hope the process is what it should be, with a non-partisan focus on who is best to be one of our Supreme Court Justices. With Ms. McLachlin leaving, there will be significant shoes to fill.

 

Richard Mahoney:

As stated above, there are two decisions for the process now - the appointment of a new Chief Justice, and a replacement for Justice McLachlin on the bench. While it is great fun to speculate: will Trudeau appoint the first indigenous Canadian to the Court? Will the next Chief Justice also be a woman? As Tom points out, of the three current Justices from Quebec, one, Suzanne Cote, would meet that bill and be outstanding.

That said, Clement Gascon is also an outstanding candidate as well. I think it is too early to tell who might replace her in either role, but I suspect the Prime Minister and the Advisory Committee will be looking at candidates who are similar to Beverly McLachlin: an outstanding leader of the Courts, the Canadian judiciary, and of our legal system as a whole; someone who understands our system of laws, our constant evolution as a nation as well as the notion that the law needs to remain relevant to the people it is intended to serve.

With a proper consultative process now in place under the Campbell Committee, and the principle of parliamentary oversight first established by Prime Minister Martin and now re-established by Prime Minister Trudeau, we can have strong confidence in the process and the tradition of excellence on the Supreme Court - a tradition wonderfully personified by Chief Justice Beverley McLachlin herself.

 

Richard Mahoney is a lawyer with deep experience in politics and governance.  He is a former senior advisor to the Rt. Hon Paul Martin, a former Campaign Chair and President of the Ontario Liberal Party. John Capobianco is a Senior Partner and National Public Affairs Lead at FleishmanHillard. He has been a Conservative strategist with over 30 years of political activism at all three levels, including as a former federal Conservative candidate. Tom Parkin is a veteran NDP strategist and a frequent commentator on national issues. 

 

 

 

 

 

 

 

 

 

Posted date : June 14, 2017
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