Full bench means work gets done

Chief Justice Beverley McLachlin was beaming at the Canadian Bar Association convention in Quebec last week. She had reason.
It is heart-warming to see the top judge of the highest court in the land looking so pleased.

Her court had shown earlier this summer what it can do when it has the resources. It came up with a ruling on the $35-billion BCE Inc., takeover in something like three weeks. Speedy. No other way to say it. That put those whiners in their place. She was pleased to tell the assembled lawyers all about it.

That’s why it was worth listening when she said that she wants Prime Minister Stephen Harper and Justice Minister Rob Nicholson to hurry up and appoint the ninth and final justice to the bench of the Supreme Court of Canada before the heavy workload in October.

When former justice Michel Bastarache retired back in June, he said the same thing. A full bench means the court gets things done.

Now we’re almost into September and we still don’t have a replacement for Bastarache. Harper has been stalling. Don’t blame him too much. Filling a Supreme Court vacancy is a lot tougher than picking a cabinet. All kinds of factors come into play.

First, there is geography. There are nine judges on the bench, three from Ontario, three from Quebec, two from the West, and one from Atlantic Canada. Bastarache was from New Brunswick, so Harper’s choice has to come from Atlantic Canada. Everybody else in Canada? Forget about it.

Then there has to be a balance,

male and female, luckily right now it’s four women, four men, so either gender is not a factor.
In the U.S. the big issue is whether a Supreme Court nominee is a progressive or a conservative. We don’t tear ourselves apart like that in Canada.

We put the emphasis  on skills, not ideology. Bastarache was an expert on corporate and commercial law (he used to run a major insurance company) and an expert on minority rights issues. And the Constitution and the Charter. He had it all, and worked tirelessly.

They called him “the little workhorse.” He wasn’t a big talker, but when you work that hard you don’t need to be.
Bastarache was bilingual. French or English. Bring it on.

That’s Harper’s problem. Everybody on the bench is bilingual except for one judge. He’s Justice Marshall Rothstein of Manitoba, appointed by Harper in 2006, Harper’s only Supreme Court appointment so far. The fear is that Harper will appoint another unilingual anglophone.

Right now at the court, everything in French has to be translated for Rothstein. So he sits on fewer cases in French than he might otherwise. That reduces the court down to eight justices.

But eight is a bad number for the bench. What if there was a tie? What do they do, go back and deliberate more, like a jury? Or flip a coin? If so, there goes credibility.

So they use seven justices. Now we are down to seven. The workload is increasing. So are the delays.
French-language jurists associations across Canada have said publicly and repeatedly they want a bilingual appointment. So has Parliament’s official languages committee, Commissioner for Official Languages Graham Fraser, and various legal and judicial bodies, and dozens of francophone organizations. It’s an issue.

Article 16 of the Official Languages Act says all judges in federal courts have to be bilingual. There are more than 1,100.

There’s an exception. Supreme Court justices can be unilingual. Strange that an officially bilingual country that can find 1,100 bilingual federal judges can’t find nine more for the highest court.

Justice John Major, who retired from the Supreme Court three years ago, said he didn’t speak French but the translation services at the court were excellent and bilingualism should not be a criterion for appointment.

Fraser replied: “What is the ability of a unilingual, anglophone judge to pass judgment on the quality of translation services?”

The word came out on Parliament Hill earlier this year that Harper would appoint a woman from Newfoundland.

The province has never had a Supreme Court justice. It would be five-to-four for women on the bench for the first time. Then it came out that that she is not bilingual.

There are plenty of good candidates in New Brunswick, including Chief Justice Ernest Drapeau. It’s Canada’s only bilingual province, but why not give it to another province this time?

The name of bilingual Justice Thomas Cromwell of Nova Scotia often comes up. Francophone Acadians are pushing for him. Perhaps Harper is listening. Then again, he may stick with his original choice.

Richard Cleroux is an Ottawa freelance reporter and columnist on Parliament Hill. His e-mail address is [email protected].

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