OTTAWA – Prime Minister Justin Trudeau will ask those tasked with developing a short list of candidates for the Supreme Court to include judges from Atlantic Canada, but that does not mean someone from the region will end up getting the job.
“The next appointment to the Supreme Court of Canada will not necessarily be a person from Atlantic Canada,” Justice Minister Jody Wilson-Raybould said Thursday during an appearance before the House of Commons justice committee.
“Having said that, we recognize the importance of regional representation,” she said.
As a way to make the process more transparent, the Liberal government announced last week that a new non-partisan advisory board will choose potential new judges to sit on the high court.
Justice Thomas Cromwell, who is from Nova Scotia, will retire next month.
The convention would have been for Cromwell to be replaced by another judge from Atlantic Canada.
The Liberal government came under criticism last week when it indicated the seven-member advisory board, chaired by former prime minister Kim Campbell, would consider candidates from across the country.
Janet Fuhrer, president of the Canadian Bar Association, wrote to Trudeau and Wilson-Raybould on Wednesday urging them to reconsider respecting the custom of regional representation.
Wilson-Raybould said Thursday that Trudeau’s mandate letter to Campbell says he expects to see judges from Atlantic Canada on the short list and she encouraged them to apply.
The advisory board is also being asked to ensure candidates are “functionally bilingual” and reflect the diversity of the Canadian population.
Wilson-Raybould defended the choice to hand the responsibility over to the independent board.
“Our intent is to depoliticize the process,” she said.
Wilson-Raybould said opposition critics and MPs on the justice committee will have the opportunity to be consulted on the short list created by the advisory board and on the final choice of nominee.
“There are many steps in this process that will enable members of Parliament to be fundamentally involved as the process unfolds,” she said.
Earlier Thursday, Chief Justice Beverley McLachlin said it is taking too long to name a replacement for Cromwell.
“I understand that process is important, but it is also essential that the current vacancy be filled so that the Supreme Court of Canada can discharge its responsibilities in the session to come in the best possible fashion,” McLachlin said Thursday in an address to the annual legal conference of the Canadian Bar Association.
She said she is concerned about the length of time needed to find a replacement, but added she remains hopeful she will have a new colleague on the bench early this fall.
McLachlin, who said she was consulted about the new process by Wilson-Raybould and others, said she would like to see it succeed.
“I hope it works really well and is open, accountable, produces a great justice and that the Canadian public will be assured that the processes have been fair and we have the very best person for the job,” she said.
She also said she would not comment on the fact that the new justice might not necessarily come from Atlantic Canada.
“There are a lot of factors that go into an appointment and that’s the government’s responsibility and I’m not going to tell them how to do their job,” she said.
McLachlin also said that question might one day come before the Supreme Court, but did not elaborate.
In her speech, McLachlin said she is also concerned about 44 other judicial positions nationwide the federal government has yet to fill.
“There is something deeply wrong with a hiring scheme that repeatedly proves itself incapable of foreseeing, preparing for and filling vacancies as they arise,” she said.
Speaking to reporters later, McLachlin urged the Justice Department to start thinking about how to resolve the ongoing problem that has existed throughout governments of all political stripes.
“It is fixable. Let’s figure out how to fix it,” McLachlin said.
McLachlin said the vacancies can restrict access to justice, which she said should be a top priority to ensure the public does not lose confidence in the system.
She also had a list of other challenges that the governments could fix.
“Rules and procedures are still more complicated than they should be, causing unnecessary delays,” she said in her speech. “Financial barriers continue to thwart access to justice. The low level of funding for legal aid leads litigants to appear in courtrooms without the support of counsel, placing unfair burdens on courts, the litigants, the bar and, ultimately, the public purse,” she said in her speech.
McLachlin, who has been chief justice since 2000, also highlighted the problem of courts being “underequipped and understaffed” – exacerbating the problem of access to justice.
“It will be crucial to look at ways to ensure the proper funding and staffing of courts, while preserving judicial independence and ensuring public accountability for moneys spent,” she said.
McLachlin also called on the federal government to restore funding to the Canadian Judicial Council she chairs, which she said has been struggling since losing a major part of its funding in 2014.