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Nova Scotia’s Cromwell nominated for SCC

|Written By Robert Todd

Justice Thomas Cromwell may have been nominated for a spot on the Supreme Court of Canada bench amidst political controversy, but members of the legal community hail the Nova Scotia Court of Appeal justice as an eminent jurist with a knack for writing prompt and precise decisions.

Nova Scotia Court of Appeal Justice Thomas Cromwell has been nominated for a spot on the Supreme Court of Canada bench.

“He’s considered to be very, very bright. He has great knowledge of the law and tremendous analytical skills,” says Danny Gallivan, the Halifax-based managing partner of Cox & Palmer, adding  Cromwell has broad support from the local community and is unaware of controversial decisions from the judge.

“He’s decisive; good judgment. He’s proficient in the sense that you sometimes hear complaints about benches not getting judgments out in a timely manner - I understand he excels at turning things around. And he’s bilingual.”

Prime Minister Stephen Harper jettisoned his own selection panel made up of five MPs - two Conservatives and one from each opposition party - to make the nomination a day before announcing an election.

He cited problems within the committee, namely its failure to form a short list of candidates, opposition MPs’ refusal to participate in some scheduled meetings, and political wrangling over which MPs should sit on the panel.

Harper charged the committee last spring with putting forth three candidates for his consideration.

“Thomas Cromwell’s candidacy was highly recommended by judges, lawyers, and other Atlantic Canadians,” said Harper in a release. “He is well qualified to serve on the country’s highest court.”

But New Democratic Party MP Joe Comartin, who was a member of the selection panel, denies Harper’s claim that opposition members thwarted the group’s work. “They’ve been really dishonest on this,” says Comartin, who practised law for 27 years before arriving at Parliament Hill.

“The committee functioned quite well. If there’s any delay in here, it lies at the feet of the minister of justice. We’ve known since early April that justice [Michel] Bastarache was resigning, and he could have initiated the process while Parliament was still sitting in the spring.”

The government said the nomination wouldn’t be made official until Cromwell, 56, sits before a televised ad hoc parliamentary committee - as did Justice Marshall Rothstein in 2006 - to answer questions for transparency’s sake. That’s not expected to happen until the Oct. 14 election leaving the court short a judge as it embarks on its busy fall schedule Oct. 6.

The nomination was needed because former Supreme Court justice Bastarache of New Brunswick left the bench in June.

Cromwell, married with one son, was born in Kingston and received his LLB from Queen’s University in 1976. He continued legal training at Oxford University, obtaining a civil law degree in 1977.

He was called to the Ontario bar in 1979 and the Nova Scotia bar in 1984 and started his practice in 1979 at O’Hara Cromwell & Wilkin, remaining until 1982.

From 1984 to 1992, he acted as an arbitrator and adjudicator at labour tribunals. He then assumed the role of vice chairman of the Nova Scotia Labour Relations Board and Construction Industry Panel from 1991 to 1992.

Cromwell moved to a position that will serve him well in his new role, working at the Supreme Court as executive legal officer for then-chief justice of Canada Antonio Lamer from 1992 to 1995.

He joined Weir & Foulds as a litigation associate in 1995, and in 1997 was appointed by then-prime minister Jean Chrétien directly to the Nova Scotia Court of Appeal.

Cromwell also has been active in legal education throughout his career, serving as a special lecturer in civil procedure at Queen’s from 1980 to 1982, associate professor and professor of law at Dalhousie Law School from 1982 to 1992 and again from 1995 to 1997.

He has served as president of various legal organizations, including the Canadian Institute for the Administration of Justice, Canadian Association of Law Teachers, and the Continuing Legal Education Society of Nova Scotia.

Brian Crane, a member of Gowling Lafleur Henderson LLP’s Ottawa Supreme Court practice group, says Cromwell has all the qualities desired in an appeals court judge.

“He has an excellent writing style, he’s very much attuned to the type of jurisprudence that we have now under the Charter,” says Crane, who considers Cromwell a friend, as both sit on the board of directors of the Canadian Forum on Civil Justice.

“He has dealt with Charter cases both in the criminal context and in the administrative law context.”

Noting each Supreme Court appointment is crucial for Canada, Crane says it was vital to have a new voice from a Maritime province, which has a “complex environment” in terms of its legal system.

Phillip Saunders, the current dean of Dalhousie Law School, who was Cromwell’s student in the early 1980s, says he “can’t imagine a better nominee.”

“He was one of the most effective teachers I’ve ever known,” says Saunders. “He was very clear, very logical in his presentation, always extremely well prepared. He was just a pleasure to be taught by, and I think the skills he showed in that have really carried over to his writing, certainly, as an academic.”

Saunders describes Cromwell as “unfailingly polite and compassionate,” and adds, despite the political controversy surrounding the nomination, Cromwell would have been on anyone’s short list.

Crane notes that it’s vital for the top court to have a full complement of justices. If only eight judges are available, only seven are able to hear cases in order to meet a requirement that an uneven number of justices hear cases.

“It makes a great deal of difference,” says Crane, adding that the Supreme Court judges also form groups of three to deal with leave to appeal matters. If fewer than nine judges are active, that workload can’t be shared evenly.

“So it’s important that the court have a judge as soon as possible,” says Crane.

Canadian Bar Association President Guy Joubert calls Cromwell an “excellent choice . . . He has an ability to hone down and get to the crux of any case. His decisions are very analytical and precise.”

The CBA president also issues a warning in terms of the public vetting of Cromwell in the televised parliamentary committee meeting. “The Canadian Bar Association urges all participants to be cognizant that they don’t politicize the process, and that the questioning isn’t structured in a way to further political agendas,” says Joubert. “We want to maintain the integrity of the process and the court.”

While Cromwell has been heralded, the selection has disappointed some Newfoundlanders, the only province yet to furnish a Supreme Court judge.

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