Tuesday, November 21, 2017

Wanted: bilingual indigenous female western judge for Supreme Court duties

With the imminent retirement of the Chief Justice of the Supreme Court of Canada, Beverley McLachlin, Prime Minister Justin Trudeau has two big decision to make by December 15th, decisions that will affect the administration of justice in this country for years to come. He needs to appoint a new judge to replace Justice McLachlin on the 9-person top court, and he also need to appoint someone to take over her role as Chief Justice.
Trudeau doesn't necessarily need to steer the court in a "liberal direction" - even Stephen Harper's appointees were relatively liberal in their outlook (as he found to his own chagrin), and Canadian judges tend to be much less political than American ones. But the Prime Minister is hamstrung and constrained by decades of precedent, tradition and convention.
Traditionally, the court has to have three members from Quebec, three from Ontario, one from Atlantic Canada and two from the West (of which one should really be from British Columbia). Note that this is just a tradition, not a legal requirement, presumably roughly based on populations at the date of confederation. If it were to be based on the relative provincial populations today, the regional representation would be more like: four from Ontario, two from Quebec, one from British Columbia, one from Alberta, and half each from the prairie provinces and the Atlantic provinces (meaning, presumably, an alternating arrangement). But Mr. Trudeau tampers with tradition at his own political risk, and he is under a lot of pressure to appoint a Westerner, preferably from British Columbia (which is where the retiring Ms. McLachlin is from). Added to that, the appointee should be female, to maintain the approximate gender balance of the court (four women and five men), and she should be functionally bilingual or at least fluent in French, because Canada has two official languages. You can see that the pool of eligible candidates is already starting to look smaller and smaller.
Then there is also pressure to appoint an indigenous judge, something Canada has never seen, and that really dries up the pool. There is no convention that dictates this pressure, but Mr. Trudeau clearly sees himself as a champion of indigenous rights, and this would be a perfect opportunity to earn some serious Brownie points on the issue. Highly qualified indigenous candidates, though, are few and far between. Two or three possible names have been put forward: John Borrows, who is a member of Ontario's Chippewa First Nation, although he has lived and worked in BC for some years (he has spent the last year learning French on a sabbatical in Quebec, but is definitely not bilingual, and definitely not female); Mary Ellen Turpel-Lafond, who comes from the Muskeg Lake Cree Nation in Saskatchewan, but has worked in BC for the last ten years, although not as a practising judge but as a Representative for Children and Youth (she is bilingual, and is definitely female); and Todd Ducharme, who is a M├ętis Ontario Superior Court justice, but has worked in all three Territories, and who is considered an outsider in the race.
None of the candidates tick all of the boxes, so somebody somewhere is going to have their nose put out of joint, and there will be complaints from some quarters whatever Mr. Trudeau decides.
As for appointing a new Chief Justice, these are usually chosen from the remaining sitting justice of the Court, but again convention comes in to play: Chief Justices almost always alternate between a judge from Quebec and one from the rest of the country. So, in theory, it should be a Quebecker this time, although the Prime Minister's father Pierre Trudeau did dare to make an exception to that rule some thirty-odd years ago. Ms. McLachlin is well-loved and respected, and is going to be a hard act to follow for anyone.
Tricky decisions, and Mr. Trudeau cannot fail but offend someone somewhere. And almost nowhere in these considerations does the requirement for the best and most experienced candidate appear. Convention and tradition appears to trump all.

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