Sean Fine and the Supreme Court of Canada

Sean Fine, the Justice writer for the Globe and Mail, is getting more and more space. Rightfully so. Apart from high-profile criminal cases or civil law suits which titillate the public imagination, intelligent writing on the legal system and how courts actually work is lamentably lacking in Canadian media. Sean Fine has been the outstanding exception. He is generally topical, reliable, and comprehensive. Following Sean Fine in the Globe in print, on their website often the day before, or on Twitter, is a good way to keep abreast of legal issues, particularly on the national scene. His recent writing illustrates the point.

Introducing the Judges of the Supreme Court of Canada

His Canada’s bench strength: Meet the judges, new and old, of the Supreme Court published earlier this month is a novel introduction to the Supremes. His readily digested summary of each Supreme Court Justice describes their age, family and legal background, education, who appointed them, their role on the court, a couple of their leading decisions, and their personal characteristics. It’s a good thumbnail sketch of the most important jurists in Canada whose decisions affect us all.

Profile of Justice Malcolm Rowe

On Saturday, Sean Fine wrote a very informative profile of Supreme Court of Canada nominee Malcolm Rowe, entitled Rowe driven to succeed.” Rowe’s parents were from fishing villages, and then moved to St. John’s to better educate their children. They endowed him with a vigorous work ethic and a rigorous intellect. Apparently, whatever he has pursued as a professional and as a sportsman, adept at kayaking, skiing and sailing, he has done with focused determination to do well. He has worked to perfect his French and has more than surpassed the basic requirement for functional bilingualism. His knowledge of his province, his people and the country is deep, sensitive and genuine.

Hearings on his Nomination

The new SCC-appointment process requires two hearings before the Prime Minister confirms the nomination. The first is for the government and the Chair of the Advisory Committee to explain to the Parliamentary Justice Committee how the process worked and why Justice Rowe was nominated. The second is for the nominee to “meet” Parliament and answer questions about his or her legal experience and philosophy.

On Tuesday, in his article Ottawa stands by nationwide Supreme Court process, Fine describes the first hearing. Advisory Committee Chair Kim Campbell reported that 31 candidates applied for the vacancy, slightly less than half were women, the committee interviewed ten, some were not functionally bilingual (a criterion imposed by the new procedure). Justice Minister Wilson-Raybould defended the government’s decision to conduct a nationwide search even though the vacancy came from the Maritimes. She indicated “the process requires some candidates on the shortlist to be from Atlantic Canada.” The aim of the government, she said, was to create a court which “reflects the faces and voices of Canada” and “the values of Canadians today.”

Fine’s report focuses on the controversy which arose after the new appointment process was made public in August. What is the nature of the diversity the court should reflect? The geographic diversity reflected by the tradition of having one judge from the Maritimes? Or the ethnic, racial and gender diversity which would include indigenous people and multicultural contemporary Canada? The Commons voted 270-0 “urging the government to respect the ‘custom’ of regional representation, and a lawyers’ group filed a court challenge to any attempt to go outside the region.”

My reading of the process in August did not pick up on any specific requirement that the shortlist include nominees from the region with the vacancy. It was clear, however, that the government intended the process to be evaluated and that it could well be changed. I suspect that the political furor since August has caused the Justice Minister to insert “the regional factor” on the fly. That’s not a bad thing.

In the result, it seems that Justice Rowe is, as the Minister said, “… an incredible jurist of the highest quality and the best candidate.” As for the nationwide process, I think it a very intelligent approach which will allow the feds to find future Supremes from across the country, and enable future candidates to perfect their language skills. Creating an open-ended pool will make future choices more expeditious.

Yesterday, Fine’s article Justice Rowe put to the test in nomination hearing describes the first-ever nomination hearing conducted under the new process. The hearing was held before 14 MPs and Senators, each given five minutes to ask questions of Justice Rowe, and 150 students at the University of Ottawa. A brilliant format. Efficient, respectful and, by including an audience of students, mindful of the future. (As an aside, I wonder if Trudeau as the Minister of Youth suggested the venue and the audience?) Sean Fine reports that Justice Rowe “staked out a liberal position on Charter issues, impressed a Quebec separatist with his spoken French and displayed his greatest passion on questions related to indigenous peoples and the law.” Justice Rowe may well be a white male, but he apparently exemplifies all that the government is looking for in a new Supreme.

On the Globe and Mail website, you will also find Sean Fine’s tweets of what Justice Rowe was asked, what he said, and Fine’s impressions of the hearing as it occurred. If you have a Twitter account, check out his tweets from the hearing of the Minister of Justice and Advisory Chair Kim Campbell the day before. A Twitter feed is effectively a live blog. Fine’s Twitter username is @SeanFineGlobe.

Where was the CBC on this? The only television coverage appears to have been provided by CPAC LIVE ONLINE at 11:15amET/8:15amPT, as part of its coverage of Parliamentary Committees. Who knew? If you search in the CPAC Digital Archives, you can find videos of both hearings. When the hearing for the next new Supreme occurs (in 2018, when Chief Justice Beverley McLachlin will retire), any chance we can have full CBC live television coverage with appropriate notice to all who are interested?

Parliament has no veto over the choice but, pursuant to the process, the Parliamentary Committee that questioned him will meet today to endorse his appointment, and he is expected to be sworn in next Monday.

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