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New Selection Process; New SCC Appointee

Osgoode Students Witness Historic Q&A


In August of 2016, the Trudeau Government announced a new process for appointing Justices to the Supreme Court of Canada (SCC), in expectation of Justice Thomas Cromwell’s retirement from the bench this past September.


Aimed at promoting transparency, inclusiveness, and accountability to all Canadians, the new selection process called upon an independent and non-partisan advisory board of lawyers and legal scholars to recommend appropriate nominees to fill Justice Cromwell’s vacancy. The Advisory Board, which was comprised of seven elected individuals and chaired by the Right Honourable Kim Campbell, was guided by criteria set out by the Minister of Justice, Jody Wilson-Raybould, in late August. Among the suggested standards were the requirements that the candidate had to be not only qualified but also “functionally bilingual”, and familiar with Canada’s diverse backgrounds and experiences.


From the thirty-one applications submitted, the Advisory Board drafted a list of five potential candidates and ultimately selected Justice Malcolm Rowe on October 17th. Trudeau’s announcement of Justice Rowe’s nomination made him the first SCC Justice nominated under the Government of Canada’s new selection process and the first Newfoundland and Labrador appointee to the country’s top court since Newfoundland joined Confederation in 1949.


Throughout his distinguished career, Justice Rowe has worked in all three levels of government as well as private practice. He was first appointed to the Newfoundland and Labrador Supreme Court in 1999 and has most recently sat on the Court of Appeal of Newfoundland and Labrador since 2001. During his time on the bench, Justice Rowe has made a remarkable contribution to the area of sentencing law, particularly when dealing with sentencing circles within Newfoundland and Labrador, where he has been credited with establishing the guiding principles currently used.


Selected for his thorough understanding of the country and his remarkable depth of legal experience in criminal, constitutional, and public law, Justice Rowe has also been involved in Charter rights, foreign relations, the arbitration of maritime boundaries, and the negotiation of conventional law through the United Nations.


Under the old regime, Justice Rowe’s remarkable achievements may have been enough to solidify his nomination. However, to further enhance Trudeau’s new promise of transparency and accountability, opportunities were also provided to Members of Parliament and the Senate thereby allowing them to be involved in the appointment process. In addition to ad hoc meetings and hearings before the House of Commons Standing Committee on Justice and Human Rights, Justice Rowe took part in a Town-Hall style meeting with members of Parliament, the Senate and representatives of the Bloc Québécois and the Green Party.


Taking on the role of audience members with approximately one hundred and forty other law students from across Canada, Heather Fisher and I attended this moderated question-and-answer session as the representatives for Osgoode Hall Law School. Held at the University of Ottawa on October 25th, this ninety-minute Q&A period allowed Members of Parliament and Senators from all parties the opportunity to address Justice Rowe on a series of topics, including his outlook on Indigenous legal issues, diversity in the Court, and the importance of judicial activism.


Of the twenty-four Senators and Members of Parliament in attendance, only fourteen individuals made up the Q&A panel. The panel included NDP Party Leader Tom Mulcair, former head of the Truth and Reconciliation Commission Senator Murray Sinclair, Conservative Senator Denise Batters, and Liberal Senator Mobina Jaffer, the first South Asian woman to practice law in Canada.


Each panelist was given five minutes to question Justice Rowe on any issue they desired and could address him in either French or English. Over the session, questions touched on everything from Justice Rowe’s bilingualism and his familiarity with Quebec culture and Civil law, to his view on creating law and the bench becoming more visually representative of Canadian citizens as a whole. Justice Rowe received questions about a controversial decision he had written last May regarding an appeal involving a sexual assault case. However, he declined to discuss his reasoning.


When it was her turn to ask a question, Senator Jaffer noted that “20% of Canadians are visible minorities,” however, there has yet to be a single person of colour nominated to the SCC, let alone appointed to it. In his response, Justice Rowe attempted to address Senator Jaffer’s concerns by stating that although his decisions will be limited to his experiences, those experiences have taken place from “Nunatsiavut to Burnaby, BC.” He continued by saying that with each new case, he has learned new things about Canada and its citizens and that these insights will allow him to understand the need for subjectivity when approaching various cases. Justice Rowe concluded his answer by stating that as a SCC Justice, he hopes he will be able to continue learning from the bench and vowed to “listen” as he does.


Despite being appreciative of his answer, I felt that, with all due respect, although undoubtedly sincere, his response lacked some realism. While it is true that having a broad range of experiences from coast to coast would assist in Justice Rowe’s understanding of the Canadian landscape, I am hesitant to accept that these experiences would also make Justice Rowe as privy to the daily experiences of a visible minority as someone directly from that community. This point was made extremely evident when Justice Rowe suggested that Indigenous law within Canada is “still young.” While Canada’s acceptance of Indigenous legal traditions has only gained traction as of late, our legal traditions stem from time immemorial, and frankly, an Indigenous Justice would be familiar with that.


So, while I appreciate Justice Rowe’s understanding for the need to be subjective, and while I do not doubt that he will be effective in the SCC, I cannot help but support Senator Jaffer’s worry about representation among the bench. Although regional representation is and has always been important, without true diversity amongst Justices, regional representation can only achieve so much.


Hopefully, with the predicted retirement of Chief Justice Beverly McLachlin in 2018, we will see diversity get another chance during the next selection process. Until then, however, I am enthusiastic to see what new perspectives Justice Rowe will bring to the SCC, and how his vast experiences and knowledge will continue to advance Canada’s law. In particular, I am especially excited to see Justice Rowe re-examine his controversial decision from last May, as the case was appealed to the SCC earlier this year.


I would like to thank Osgoode Hall and in particular Dean Sossin and Associate Dean Berger for allowing Heather and me to attend this amazing opportunity. It was a highlight of our law school careers and one we are not likely to forget anytime soon.