Justice Cromwell’s departure will test the Liberal government’s call for transparency
Justice Thomas Albert Cromwell: “Being a judge is both a great privilege and an onerous responsibility”
The news that Justice Cromwell had announced he will retire from the Supreme Court of Canada (SCC) on 1 September of this year—twelve years before the mandatory retirement age of 75—seemed to come out of nowhere. It appears that I wasn’t the only one who thought so. Osgoode Professor Philip Gerard, who knows Justice Cromwell from their days teaching at Dalhousie, also expressed his surprise to Maclean’s magazine, saying that he was under the impression that he enjoyed his job at the Supreme Court. Some had even pegged Cromwell to be Chief Justice Beverley McLachlin’s replacement, since (I really hate to say this) her mandatory retirement date is coming up in 2018. While his personal reasons for leaving Ottawa are yet to be made public, many hope that he will lend his wisdom and judicial insight to another sector of law.
Although Justice Cromwell wrote judicial reasons in a large variety of cases (“..everything from A to Z, from aboriginal to zoning,” stated lawyer Eugene Meehan), the decisions that are most memorable are probably no stranger to anyone who has taken criminal law. In R v Fearon, the right for police officers to search cell phones during a lawful arrest was upheld as constitutional with regard to section 8 of the Charter of Rights and Freedoms, which prohibits unreasonable search and seizure. I might be stealing this joke from Professor Berger, but here’s a note to potential criminals: it is not a good idea to send a text saying “we did it” after committing a crime. In another section 8 case, R v Spencer, Justice Cromwell wrote for a unanimous court in a decision widely hailed as a massive victory for privacy rights on the internet.
Also written by Cromwell were the reasons in M.M. v Minister of Justice, which somewhat famously led Justice Abella, writing for the dissent, to call the majority’s decision “Kafkaesque.” The case was a tragic story of a mother being extradited to the United States to face charges of child abduction after her children ran away from their abusive father. Justice Cromwell, however, reasoned that this case did not violate the principle of double criminality. On a more positive note, Professor Girard told Maclean’s that, more than likely, Justice Cromwell’s biggest impact as a justice will be the SCC’s application of his lower court reasoning regarding Aboriginal title in Tsilhqot’in Nation v British Columbia, which was previously rejected in the Marshall and Bernard cases.
The vacancy on the SCC will be interesting from a political point of view, as Justin Trudeau has made two promises regarding Canada’s highest court. The first of these was a pledge to make judicial appointments more transparent; a reform which has been pledged by the government numerous times since 2004. Stephen Harper originally agreed with the need for reform and promised to shed more light on the process during a speech given at the appointment of (Osgoode’s own) former Justice Marshall Rothstein, but despite this, the process actually became less clear during his tenure. The criteria used in determining appointments hasn’t been published since 2006 and after the Marc Nadon controversy came to light, the media and even Parliament have been purposefully left in the dark. Critics have consistently stated that this lack of openness and transparency undermines the judicial branch, so if Trudeau is able to implement anything in this regard, it will be a huge success for the Liberal party and a positive step forward for the government as a whole.
The second promise made by the Liberals was that all appointees to the SCC would be “functionally bilingual.” This poses a particular problem in replacing Justice Cromwell since he is from Nova Scotia and therefore according to convention, has to be replaced by another candidate from the Atlantic provinces. Many worry that this will unnecessarily limit the amount of qualified judges that can be considered, especially when considering that Newfoundland and Labrador has yet to be represented on the Supreme Court and currently has no bilingual judges sitting on the Court of Appeal.
I am very excited to see who Trudeau pegs as the nominee and whether the process will change from the closed doors affair it has been throughout Canadian history. Will the government continue to keep Canadians in the dark about the nomination process for its most important court? After all, as the Prime Minister has said himself, “sunlight is the world’s best disinfectant.”