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Feds promise regional balance on Supreme Court, with western seat up for grabs in December

By Peter Mazereeuw      

Bilingualism will still be mandatory for judges on the top court, according to the federal justice minister.

Justice Minister Jody-Wilson Raybould will clarify for an advisory board on Supreme Court appointments that regional balance on the court should be a priority, according to a letter she wrote to the House Justice Committee. The Hill Times photograph by Peter Mazereeuw

The Liberal government has pledged to “emphasize” the importance of regional representation on Canada’s top bench, with its top judge set to retire in December and open up a spot traditionally filled by a western Canadian.

The government “commits to clarifying the qualifications and assessment criteria to emphasize the importance of maintaining regional representation over time” on the Supreme Court, according to a letter by Justice Minister Jody Wilson-Raybould (Vancouver Granville, B.C.) to the House Justice Committee that was tabled in the House earlier this week.

Chief Justice Beverley McLachlin announced Monday that she would retire on Dec. 15, nine months before she would reach the mandatory retirement age of 75. Her retirement will leave just one judge from Western Canada on the top bench, down from the customary two judges, and is already raising questions about who will be picked to replace her, and from which part of the country that replacement will hail.

Liberal MP Anthony Housefather (Mount Royal, Que.), who chairs the House Justice Committee, told The Globe and Mail Tuesday that regional representation “should not be secondary” when the government and considers naming a replacement for Ms. McLachlin.

Traditionally, judges had automatically been replaced by peers from the same region, ensuring each part of Canada was represented on the Supreme Court. Western Canada has typically been given two seats on the bench, and Ms. McLachlin’s departure will leave Justice Russell Brown as the only western Canadian among Supreme Court judges.

Ms. Wilson-Raybould’s letter was written as a response to a report by the House Justice Committee on the government’s new appointment process for Supreme Court judges.

The committee’s report had called for “the qualifications and assessment criteria for appointment to the Supreme Court of Canada [to] be amended to include a statement regarding the importance of maintaining representation from each region of Canada in historically proportionate numbers.”

The government caused a stir last year when it brought in a new appointment process for Supreme Court judges, through which an independent board develops a short list of nominees for seats on the top court, based on merit.

That process, and in particular a requirement that the board, chaired by former Progressive Conservative prime minister Kim Campbell, place a premium on bilingualism, caused anxiety among some in Atlantic Canada that it would lose representation on the bench after Nova Scotia Justice Thomas Cromwell retired.

The PMO declined to commit to following that tradition after Mr. Cromwell retired, telling the CBC at the time that applications were being accepted for the position from across Canada.

The government eventually settled on Newfoundland’s Malcolm Rowe, who is bilingual in French and English, to replace Mr. Cromwell.

Ms. Wilson-Raybould’s response to the committee also said said the government would “reaffirm its commitment…to only appoint functionally bilingual candidates to the Supreme Court.”



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