By Canadian Press

Trudeau nominates first Newfoundlander, Justice Malcolm Rowe, to Supreme Court

Oct 17, 2016 | 9:30 AM

OTTAWA — Prime Minister Justin Trudeau has used a new nomination process to appoint the first born-and-bred Newfoundlander to the bench of the Supreme Court of Canada.

Justice Malcolm Rowe will join the eight other justices on the country’s top court pending a public review and interview next week by parliamentarians.

Rowe, born in St. John’s, N.L., in 1953, was plucked from a non-binding shortlist prepared from a list of applicants by an independent panel — a system Trudeau introduced in August to end what he called “a secretive backroom process.”

Rowe brings a wealth of experience working in government, private practice and as a jurist, including constitutional matters, foreign relations, the arbitration of maritime boundaries, and the negotiation of conventional law through the United Nations.

He’s also bilingual — a new prerequisite for the top court that the Liberals insisted upon as part of the new selection process.

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“I am greatly excited to announce the nomination of Mr. Justice Malcolm Rowe, whose remarkable depth of legal experience in criminal, constitutional, and public law will complement the extensive knowledge of the other Supreme Court justices,” Trudeau said in a release.

Dwight Ball, the premier of Newfoundland and Labrador, called Rowe’s nomination “a moment of great pride” for the province.

“This historic nomination is recognition of the quality of our judicial system and the extraordinary jurists who preside over our courts,” Ball said in a statement.

It was Trudeau’s first Supreme Court appointment. The next scheduled vacancy on the bench comes in September 2018, when Chief Justice Beverley McLachlin reaches the mandatory retirement age of 75.

Rowe, who was first named a trial judge in 1999 and has been a judge of the provincial court of appeal since 2001, replaces Justice Thomas Cromwell, previously a Nova Scotia Court of Appeal justice, who retired last month.

Trudeau caused some consternation when he cast open the appointment process this summer by inviting applications from across Canada for a vacancy that, by tradition, has been held by an Atlantic Canadian.

The goal, he said, was to find candidates “representative of the diversity of our great country” — including an emphasis on indigenous and minority group legal minds.

Justice Minister Jody Wilson-Raybould said diversity remains a goal, and pointed to McLachlin’s retirement in 2018.

“I know that across the country there are many indigenous jurists, lawyers, that could fit the criteria to be on the highest court,” Wilson Raybould said outside the Commons.

“There is, with the retirement of Madam Chief Justice McLachlin, an opportunity to go through this process in 2018, and I think the process worked very well.”

The wide casting call prompted the Atlantic Provinces Trial Lawyers Association to launch a challenge last month seeking a constitutional amendment if the federal government wanted to drop the regional convention on the top court. The Supreme Court Act designates three of the nine jurists for Quebec but is silent on other regional representation.

The lawyers’ association could not be reached for comment Monday and it is not clear if the court challenge will go ahead now that Rowe has been selected.

Conservative justice critic Rob Nicholson, a former justice minister, called Rowe “an excellent choice” and took credit for holding the Liberals’ feet to the fire on supporting a regional candidate.

“There were more than enough qualified Atlantic Canadians to fill that position and I’m glad the prime minister has chosen to listen to us,” said Nicholson.

It’s the first time would-be Supreme Court jurists have had to proactively apply for consideration, and 54 applicants stepped up, said Carissima Mathen, who teaches law at the University of Ottawa and helped draft the questionnaire the government used to vet candidates.

The short list was created by a seven-member advisory board, chaired by former prime minister Kim Campbell. A majority of the board was designated by the Canadian Judicial Council, the Canadian Bar Association, the Federation of Law Societies and the Council of Canadian Law Deans.

Justice Rowe’s responses to the questionnaire were also released by the government Monday, providing some interesting insights into his thinking on the role of the country’s top court.

“The Supreme Court is not, primarily, a court of correction,” Rowe wrote in one passage that quickly attracted attention.

“Rather, the role of the court is to make definitive statements of the law which are then applied by trial judges and courts of appeal. Through the leave to appeal process, the court chooses areas of the law in which it wishes to make a definitive statement. Thus, the Supreme Court judges ordinarily make law, rather than simply applying it.”

Howard Anglin, a former senior legal adviser to then-prime minister Stephen Harper, used Twitter to complain that Rowe’s appointment “appears to further entrench post-1982 view of courts as supra-legislatures when it comes to social and political issues.” 

Since Pierre Trudeau repatriated the Constitution and created a new charter in 1982, Conservatives have been concerned that judicial activism is undermining parliamentary supremacy.

Mathen said it’s good to get the world view of Supreme Court nominees on the record.

“I thought it was important that candidates actually be required to express some views about important issues around the role of courts in Canadian society and the role of the judge,” the professor said.

— Follow @BCheadle on Twitter

Bruce Cheadle, The Canadian Press