New Nominee to the Supreme Court of Canada

Prime Minister Trudeau announced yesterday that the Honourable Malcolm Rowe is his nominee for the existing vacancy on the Supreme Court of Canada. He’s not a woman, nor indigenous, but he is from Newfoundland and Labrador, the first Supreme Court of Canada appointment from that province. His nomination maintains Atlantic Canada’s representation on the country’s highest court, a demand from Parliament, and the bar which has risen since the new guidelines for appointments were announced in early August.

The Honourable Malcolm Rowe is 63 years of age and a veteran judge from Newfoundland and Labrador. A member of the provincial Law Society since 1978, he was appointed to the Trial Division of the provincial Supreme Court in 1999, and then to the Court of Appeal of Newfoundland and Labrador in 2001. He is bilingual in French to the extent required by the new guidelines and appears to bring to the court a remarkable breadth of legal and public law experience.

Among other things, he was a foreign service officer with External Affairs for four years, in private practice with Gowling & Henderson in Ottawa for twelve years, and Clerk of the Executive Council and Secretary to Cabinet of the Newfoundland Government, effectively head of the public service, for three years. He was a key player in several big issues affecting the province: fisheries agreements and maritime border disputes between France and Newfoundland during the 1980s, international conventions to define and enforce international law against overfishing on the high seas from 1986-1995, and a 1997 constitutional amendment doing away with denominational schools in favour of a public school system.

While on the bench, he volunteered for a full month each year for 14 years with Action Canada, a program funded by Heritage Canada and private donors to train up to 20 young Canadian “Fellows” annually in leadership skills and to expand their knowledge of the country. As a member of the Selection Committee, an advisor on the operation of government, law and public policy, and as a mentor to Fellows, he has come to know much about the particular perspectives of people from different geographic areas and social backgrounds. His responses describing his experience with Action Canada, his upbringing in Newfoundland, and his living elsewhere for 20 years are an eloquent testimony to his appreciation of the country he appears to know well. The son of parents from small fishing villages who obtained his legal education at Osgoode Hall Law School in Toronto, he is not from a disadvantaged group. It would seem, however, that he is predisposed to fulfill the government’s objective of securing a jurist who understands the diversity of the country and the different interests of its citizens.

To learn more about the nominee, check out his answers to the questionnaire he had to complete upon applying for the position. Those parts of the questionnaire which the new procedure requires be made public are on the webpage of the Office of the Commissioner for Federal Judicial Affairs Canada. The material includes his synopses of the decisions and written materials he considers the most significant of his career, including leading cases on the law of sentencing in criminal law. Even more interesting is what his responses show about his own understanding of the role of judges in different contexts and at different levels of our judicial system. His philosophy as a judge appears to reflect the activism of his career and the need for the law and legal institutions to evolve in response to changing conditions.

So did the Trudeau government blink? Preliminary news reports are that the Conservatives and NDP are taking credit for the government’s decision to appoint a Maritimer after a much ballyhooed nation-wide search. Whatever the motivation, the new procedure has set an important precedent. A pool of potential future nominees have now self-identified across the country. Professionals interested in a future appointment now know the criteria that will be applied and, like Malcolm Rowe, can take the steps necessary to make sure that they have the language skill required. Under the new procedure, prospective appointees must put their credentials, and their philosophical perspective, in writing for all the public to see. I have no doubt that anyone reading the materials submitted by Honourable Rowe will be satisfied that he brings significant stature and analytical maturity to his new role. I suspect that his nomination will be a popular decision, and that he will be well-received in his upcoming appearance before Parliament. With his background, work ethic and sense of humour, he will be a welcome addition to the Supreme Court bench.

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