HALIFAX – A sense of relief spread through East Coast legal circles Monday when Prime Minister Justin Trudeau nominated a Newfoundlander to the Supreme Court of Canada, with some experts suggesting pressure from the region appears to have had an impact.
“It really sensitized the prime minister to the importance that Atlantic Canadians place on their place in the federation,” said Ray Wagner, spokesman for the Atlantic Provinces Trial Lawyers Association, after Trudeau named Malcolm Rowe, a provincial Court of Appeal justice, to the country’s top court.
“Atlantic Canadians are very quick to pick up on losses of power. Because of our small population, we don’t have a large power base to fall back on. Losing a seat on the Supreme Court of Canada would resonate with Atlantic Canadians.”
Trudeau angered lawyers, politicians and academics in the region in August when he would not commit to replacing a retiring justice from Nova Scotia with someone from the Atlantic region, arguing that other forms of diversity were just as important.
Critics argued that the prime minister’s statement violated an unwritten constitutional convention that dates back to the founding of the court in 1875. The convention dictates the court include at least one judge from Atlantic Canada, a minimum of two judges from Western Canada, and three judges from Ontario. The Constitution specifically states that at least three must come from Quebec.
Nova Scotia Premier Stephen McNeil asked Trudeau to stick with the convention, and the Canadian Bar Association followed suit.
Last month, trial lawyers from across Atlantic Canada launched a legal challenge, saying Trudeau couldn’t change the custom without the approval of every province.
One expert warned Monday the region shouldn’t become complacent about Atlantic representation on the high court.
“This is just a way to soften up the region,” said Tom Bateman, a political science professor at St. Thomas University in Fredericton. “The body blow could very well come later.”
Bateman said Atlantic Canada may lose its representation on Canada’s highest court the next time there’s a vacancy, given the fact that Ottawa has already signalled its intent to drop regional representation rules.
Bateman said the protests didn’t leave much of a mark on the federal government.
“I don’t think they were influenced too much by the criticism,” he said. “The prime minister’s remark in August wasn’t just idle chatter … Canadians are right to suspect the prime minister of downplaying the influence of Atlantic Canada in Confederation. This was a little political two-step that he’s done.”
But Wagner said the federal government’s new, non-partisan appointment process veered off track, and he insisted that complaints from the region had an impact on Ottawa.
Wagner has argued that without adequate representation, Atlantic Canada could be hurt by future Supreme Court decisions dealing with fisheries matters, employment insurance and transfer payments.
He added the federal Liberals were risking alienation of a region where the party holds all 32 seats.
The trial lawyers’ association issued a statement saying it has asked the Nova Scotia Supreme Court to postpone further action on the group’s application challenging the appointment process.
Kelly Blidook, a political science professor at Memorial University of Newfoundland, said it’s impossible to know what motivated the nomination process, but the optics suggest politics had something to do with the final decision.
“It has the appearance of the government attempting to have their cake and eat it, too,” he said. “It does look odd. If it was a wide-open competition, then the odds of it being a Newfoundlander or Labradorian are quite low, just because of population.”
Newfoundland and Labrador Premier Dwight Ball issued a statement saying the Rowe nomination represented a source of great pride for a province that has never had one of its own among the top court’s judges.
“This historic nomination is recognition of the quality of our judicial system and the extraordinary jurists who preside over our courts,” the Liberal premier said in statement.
Nova Scotia Justice Minister Diana Whalen said the province was pleased with the nomination, but she made a point of citing the dispute over representation.
“Premier McNeil and I had both made it clear to our federal colleagues that it was important to ensure an Atlantic Canadian remain on the Supreme Court,” Whalen said. “It is very important to have a high court that represents the diversity of Canadians.”