By DJ Lam
The vetting is underway. The call for applications closed Friday (April 2) night to replace Supreme Court Justice Rosalie Abella, who retires on July 1.
Worry that a Conservative prime minister might take office, in some form of government or another before Canada Day, has somewhat abated. This is thanks in part to steady poll results for the Liberals, and an NDP commitment not to immediately test the House's confidence in these COVID-19 times.
As it stands, Prime Minister Justin Trudeau will take his advice from the Independent Advisory Board for Supreme Court of Canada Judicial Appointments, and by convention Abella’s seat will be filled by another Ontario representative.
But who Trudeau himself might choose is another worry altogether—it’s bigger.
It seems possible the Liberal government might make good in naming someone Indigenous to the bench. This would buttress its progressive claims and mitigate current criticisms about language requirements or even the process itself.
One could argue that a well-received appointment would act as a new touchstone for Trudeau's decisions with such similar choices, namely for another governor general.
It is understandable that finding a female, Indigenous appointee might seem like a tall order. But if Trudeau does, do arguably more important characteristics then play second fiddle? What is needed is another liberal lion to fill the broad-minded robes Abella has worn for near 17 years.
Canada's top court happily has not the mad, extreme politicization in its bones from which our southern cousins suffer. Indeed, this country has had many remarkable jurists.
That said, prime ministers often choose judges who have had records generally favourable to the politician’s political leanings. And it is understandable no prime minister would want to appoint a judge who might later be the lynch pin that invalidates her or his legacy legislation.
Justices Suzanne Côté and Russell Brown embody the evidence of Stephen Harper’s time in office. They are everyday dissenters when questions of a progressive nature spark majority decisions by today's Supreme Court of Canada. They were also Harper’s final two appointments.
It could also be argued that Malcolm Rowe's opinions match Trudeau in disruptive thought (think about the latter's Senate changes). For now, the first two remain a minority.
Thinking more from Harper's tenure, it became clear how the courts provided an important backstop against numerous issues, like: his enhanced mandatory minimum sentencing; opposition to InSite; the ban on medically assisted suicide; improper Senate reform; and on and on. And so no court appointment may be more important than those to the Supreme Court of Canada.
Forward-thinking Canadians should want forward-thinking judges.
Canada needs forward-thinking justices.
Back to Abella's replacement, it is critical not to throw red meat to progressive constituencies about the skin colour—any colour—of a possible appointee. Only a keen intellect in a liberal mind will defend well enough against regressive opinions and promote progressive decisions. Such an appointee would be positioned to further support Indigenous questions, or those on equality, for example.
In an ideal Canada, the pool of such appointees would be as vast as the oceans; however, this is not yet the case, and so the best minds must be chosen before any other consideration.
Abella’s impact cannot be understated, and neither should the importance of her particular replacement.