A supreme short-list: To whom will Harper turn?

April 22, 2008

The unexpected retirement of Justice Michel Bastarache leaves Prime Minister Harper with a second appointment to make to the Supreme Court. Last time, he played it safe and appointed someone to replace Justice Major from the shortlist prepared by the Martin government, but this time he has a completely free hand. The politics involved in such appointments — the weighing of region, gender, professional background (academic or practice or judiciary), race/ethnicity, religion, and dare I say it, party affiliation, provide a broad field for speculation and punditry. So what’s in the cards?

The widespread assumption that an Atlantic Canadian will be appointed to replace Justice Bastarache is based only on convention and not on any legislative provision. Yet regional representation has been one of the most unshakeable traditions associated with the Court, so both inertia and politics suggest that Harper will not choose to violate this tradition. Following tradition will not likely gain the PM any votes east of Quebec, but breaking with it would surely be seen as a slap in the face to the region.

Intra-regional politics will be the more interesting aspect of this appointment. Newfoundland and Labrador obviously has a strong claim to an appointment. No one from the province has ever sat on the high court in the nearly sixty years since it joined Confederation. Heck, two Toronto lawyers were incensed enough about this to write an article in the Globe and Mail in 2004 urging that PM Martin depart from convention and appoint a Newfoundlander to one of the (non-Atlantic) vacancies then pending.

The spoiler for aspiring Newfoundlanders is the continuing Steve and Danny imbroglio. If the PM acts true to form – i.e., punitive and vindictive – he will allow his annoyance with the province to spoil its chances for a Supreme Court seat for another decade or two. However, this could be his chance to present a more statesmanlike face to Canadians. Appointing a Newfoundlander will not gain Harper many votes in the province, but it may play well elsewhere in Canada.

So who’s in the running on the Rock? First of all, not the Chief Justice of the Court of Appeal, Clyde Wells. This PM is not going to appoint a former Liberal premier to the Supreme Court. And the man will be 71 this year, leaving him only four years in office. That would be a real slap to the province: let’s appoint someone we know will only be there a few years, then you can wait sixty years for your next turn.

There are some impressive candidates on the Newfoundland courts. Leo Barry has a breadth of experience that makes him attractive: LL.M. at Yale, practice in St. John’s, professor at Dal Law School in the 1970s, chair of the provincial Labour Relations Board, MLA and cabinet minister, and his French skills are reported to be up to par. His iconoclastic record of having run for the leadership of both the provincial Conservatives and the Liberals at different times, however, probably nixes his chances in Ottawa.

Derek Green has had a McLachlinesque career, starting on the Trial Division, being promoted to the Court of Appeal, and then going back to the Trial Division as Chief Justice. A Rhodes Scholar with no obvious prior political connections, Chief Justice Green conducted a sensitive inquiry last year into the alleged misuse of MLA expense accounts.

Michael Harrington’s name comes up frequently. He was appointed to the Trial Division last year by the Harper government so he is a known quantity. He has a very high reputation among Newfoundland lawyers but whether he has the royal jelly for a Supreme Court appointment is less clear, and his French skills are unknown.

There are some capable women candidates on the Newfoundland courts, including Gail Welch, appointed to the Trial Division in 1999 and recently elevated to the Court of Appeal, but something tells me that Stephen Harper is not the man to give the Supreme Court of Canada a female majority. The opportunity to ameliorate the gender gap in his support must be tempting, but the chance of alienating his own core voters is probably too high to risk it.

But what if Newfoundland is passed over yet again? It hardly seems possible that New Brunswick would score a hat trick on the Supreme Court, and it is unlikely that the PM will turn to Prince Edward Island with its tiny talent pool. Don’t believe what you read, by the way, about P.E.I. never having had a judge on the Supreme Court – Louis Henry Davies was appointed from Laurier’s cabinet to the Court in 1901, became chief justice of Canada in 1918, and died in office in 1924.

That leaves Nova Scotia, but it has to be said in all honesty that the province is not bursting with Supreme Court-calibre talent at the moment. Don’t get me wrong: there are lots of highly competent and professional judges sitting on the Nova Scotia bench. But the bar for the Supreme Court is higher than that. If you are looking for someone with the vision of Justice Bastarache himself, the deep humanity of Gerald La Forest, the literary eloquence of Ian Binnie, the analytical sharpness of Beverley McLachlin, or the high intelligence of Louis LeBel, there are really only two names that come to mind.

Tom Cromwell was a lawyer’s lawyer, a professor’s professor, and is now a judge’s judge. He knows the Court well, having been the executive assistant to Chief Justice Lamer for three years in the early 1990s. During his decade on the Nova Scotia Court of Appeal he has produced judgments in many areas of law which are models of clarity, reasoning, and just results. Although not given to black-letter interpretation, Cromwell is not a visionary social engineer either, which would be reassuring to the PM.

Joel Fichaud did quite a bit of high-profile constitutional and administrative law while in practice, including representing the successful appellants at the Supreme Court in the Doucet-Boudreau case on Charter remedies. He was appointed to the Court of Appeal in the fall of 2003, and in both his decisions and his oral exchanges with counsel he displays an exceptional analytical vigour and acuity. Both Cromwell and Fichaud possess the French-language skills required to participate actively in argument in that language, a factor that may be the Achilles heel for some Newfoundland candidates.

But the real question that faces Stephen Harper is this: will he seize this opportunity to remedy the historic under-representation of Dalhousie Law graduates on the Supreme Court of Canada? Our only alumna on the top court has been Bertha Wilson. (Roland Ritchie did his law at Oxford.) It’s time for Peter MacKay to stop prancing around in Afghanistan and get down to business on behalf of his alma mater. If he and Loyola Hearn gang up to force Harper to appoint a Dal Law grad from Newfoundland to the Supreme Court, it’s honorary degrees all round.

- Philip Girard is a Professor at Dalhousie Law School, and the Editor of the Dalhousie Law Journal